Sex, Crime and the Justice System

Sex workers—and sex-trafficked women—continue to be victimized by the justice system despite efforts to change how they’re treated by law enforcement and the courts. That makes a TCR columnist wonder whether we’re really serious about giving them the protection and support they need.  

I recently read about an experiment conducted with Capuchin monkeys in captivity at Yale-New Haven Hospital that offers some intriguing lessons about the relationship between sex and crime.

Under the experiment, monkeys who performed specific tasks at researchers’ behest received silver chips that could be exchanged for a favorite fruit or toy.  The experiment was designed to see if monkeys could be taught the value of money, but in the process they received a lesson in crime control.

Aware that the chips could vanish while they slept, the Capuchin monkeys began to hide them. But female monkeys learned an additional lesson. At risk of having their chips taken by stronger males, they actually began offering chips—“protection money”—to the strongest males.

It didn’t take long for the theft, robbery and protection rackets emerging from the experiment to be infused with another element.

The males began offering the female Capuchins their hard-earned chips to have sex, and the females soon realized that it was far easier to make money “selling” sex then it was to complete tasks for researchers.

They quit performing tricks for humans and got paid by the “tricks” in captivity with them.

The mix of sex, money and crime gets more complicated when it comes to humans. In his book, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,

Gayle Rubin writes that “sex law incorporates a very strong prohibition against mixing sex and money, except via marriage.”

Consequently, outside of animal enclosures, legions of police are devoted towards hunting women down who dare to exchange sex for money on a commercial basis.

In my youth, I saw many women on the strip get questioned, frisked and hauled off by police officers for violating the criminal justice system’s catchall crime of “loitering;” but in reality they were targeted as suspected prostitutes.

The local news often had stories about sex workers peddling their wares on the streets, and purportedly reducing the quality of life for the rest of the citizenry.

Yet even when prostitution moved from street corners to websites, sex workers continued to be persecuted.

This is a strange thing for me to see when the city I was raised in now has licensed shops where marijuana can be sold legally, and the county works to make the lives of heroin addicts easier.

There was a time when the culture seemed to be shifting—at least to the extent that female sex workers were coming to be seen as victims of both the criminal justice system and patriarchy: their male clients were sent home after trying to purchase sex, but the women were sent to jail.

Many reformers argued that laws against prostitution restricted freedom and autonomy, and decriminalization or regulation of this activity was a better strategy than continuing to fund Vice Squads and incarcerate (primarily poor) women for selling their bodies for money.

The arguments eventually succeeded in convincing enough people to change the status quo. But in a way that should concern anyone who looks at it closely

The “whores” who had been demonized by society were considered victims of sex trafficking—not of the criminal justice system.  Prostitutes need to be protected.  So they needed to be arrested just the same.

These bait-and-switch reforms can be seen in cities that claim to be progressive.

In Seattle, for instance, women are still being arrested and jailed for the “crime” of prostitution, even though the punishment is more lenient based on the view that these women are considered “victims” by those tasked with prosecuting and sentencing them.

In earlier eras, “fallen women” were saved by progressives who implemented policies to confine the fallen for purposes of domestication.  The contemporary version of this involves incarcerating women to provide them with drug treatment and other skills that will enable them to escape sex trafficking.

But the underlying concept is that the criminal justice system is serving these women’s best interests.

A closer look makes clear that’s not happening.

Social workers are not gaining primacy over police officers; shelters are not supplanting jails; and criminal records are not being expunged to reintegrate the women into society and thereby help them avoid future sex trafficking.

Pseudo-reformers claim that victims of sex trafficking have a unique status that warrants a restorative and rehabilitative approach. But jails and prisons are not therapeutic communities.

In fact, I have no doubt that imprisoned victims of sex trafficking know that a retributive ethos lies at the heart of their present misery, notwithstanding benevolent evocations by prosecutors, judges, and apologists with doctoral degrees in criminology.

Still, while watching the news recently, I learned that throughout the Seattle International Airport, travelers will now see signs informing them how to identify and report suspected sex trafficking.

This marketing campaign has been brought to you by those who never had a problem with sending poor women to the pokey for selling their bodies. It never ceases to amaze me how the criminal justice system adapts when hypocrisy, bias and inequity make it problematic to continue a practice while maintaining legitimacy.

I know how this game works from firsthand experience.

I used to be a super-predator. My youth did not mitigate my culpability for committing adult-like crimes.  Then, developments in psychology made the super-predator evolve into a less wicked being with a greater capacity for reform.

However, as with sex workers, that’s not what happens when the criminal justice system’s machinery swings into gear.

Records are not being expunged or sealed as a matter of course when youths turn 18, even though research tells us that crimes committed by juveniles generally reflect transient immaturity rather than irreparable corruption.

Juvenile detention centers are not being remodeled into therapeutic communities.

All that has changed is the quantum of punishment—not the response to crime or the personnel devoted to prevention.

So it is with sex workers as well.

Nevertheless, there are some ancillary benefits for women ensnared in the criminal justice system.  By conflating all prostitution with sex trafficking, female defendants can use this as a means to obtain mercy.

If you are caught selling drugs, explain during trial or at sentencing that you were strung out by a sex trafficker long ago as a means of control—and now you must peddle narcotics to support the habit that was foisted upon you.  Magically, you will transform from an avaricious, heartless drug pusher into a victim worthy of a reduced sentence and drug treatment.

If you assaulted some man in a domestic violence incident, explain that your actions were a product of the trauma induced by years of being trafficked for sex.  With this plot twist, you will now be seen to have experienced trauma worthy of judicial recognition.

I could go on concocting mitigating arguments based on the present-day sex trafficking meme. It is a gift that can keep on giving.

I have a lot of empathy for women caught in these situations. It makes sense for any woman facing jail or prison time to use sex trafficking as a proxy for all of their criminal misdeeds.

A traumatic childhood defined by physical and sexual abuse, and abandonment and neglect, has not shielded women from draconian sentencing guidelines.  Nor has childhood poverty, a criminogenic environment, and schools that aren’t conducive to learning made these women any less “wicked” to prosecutors, judges, and society once they have been arrested.

The rules of the game require that officials maintain the fiction that our crimes are the result of conscious, willful choice rather than systemic inequalities.

Jeremiah Bourgois

Jeremiah Bourgeois

So, with no other options available to persuade justice officials to recognize their humanity, women who can reinvent themselves as sex trafficking victims might find mercy from a system that is all too often merciless.

Take a lesson from the Capuchin monkeys.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He is currently petitioning for release from the Stafford Creek Corrections Center. Readers who wish to support him are invited to sign up here.


Science Takes a Hit at the Department of Justice

The official shutdown of the Justice Department’s Science Advisory Board was announced in a terse message to members this week. One member says it’s a step backwards from an ambitious attempt to apply scientific and evidence-based thinking to the federal justice structure.

On Wednesday morning, all members (including me) of the Department of Justice’s Science Advisory Board (SAB) for the Office of Justice Programs were notified that the Department is abolishing the SAB.

The news was not unexpected. Since the Obama Administration left town, there had been just one meeting of the SAB.

The next three meetings were never scheduled. With no official word about the Board’s fate, most of the members expected to hear that the SAB’s official charter would be allowed to lapse.

The news came in the form of an official letter from Matt Dammersmith, Principal Deputy Assistant Attorney General.

“At this time,” Dammersmith wrote. “[The Office of Justice Programs] OJP has decided to bring closure to the SAB.”

He added: “OJP plans to continue to seek the advice of scientists and practitioners from across to country to provide input into the scientific activities and priorities of the OJP.”

The SAB was formed by the Obama Administration in 2010. Its goal, according to the SAB charter, was to provide advice on science-related issues.

The charter explained the SAB’s mission in the following way:

The Board will provide the office of the Assistant Attorney General (AAG) of the Office of Justice Programs (OJP) with valuable advice in the areas of social science and statistics for the purpose of enhancing the overall impact and performance of its programs and activities in the areas of criminal and juvenile justice. The Board will help develop long-range plans, advise on program development, and recommend guidance to assist in OJP’s adherence to the highest levels of scientific rigor as appropriate. The Board will provide an important base of contact with the criminal justice and juvenile justice academic and practitioner communities.

Al Blumstein, Carnegie Mellon University. Founding Chair SAB.

The membership of the Board, including founding Chair Al Blumstein of the Carnegie Mellon University, and his successor Ed Mulvey of the University of Pittsburgh School of Medicine, represented a wide range of academic disciplines. That included social and behavioral sciences, as well as professional disciplines including law enforcement, corrections, treatment specialists, prosecutors, and the defense bar.

The initial members represented a broad selection of some of the country’s most noted criminal justice scholars and practitioners, including former NYPD Commissioner William Bratton, Frank Cullen, Mark Lipsey, Tracey Meares, Joan Petersilia, Rick Rosenfeld, Rob Sampson, and David Weisburd.

The most recent membership list maintained that tradition.

During their meetings from 2011 to 2017, the members of the SAB received updates from the leadership of OJP and its bureaus (including the National Institute of Justice, the Bureau of Justice Statistics, The Office of Juvenile Justice and Delinquency Prevention, and the Bureau of Justice Assistance) on the Office’s initiatives and funding plans.

The Board members, in turn, would provide or facilitate presentations about pressing issues in policy and practice, and the extent to which available solutions were grounded in science or could be better supported by new evidence.

The members of the SAB, who served without compensation, did not judge or recommend particular OJP policies or programs. The mission was to provide guidance as available from the scientific literature and the newest findings of evaluation research.

At the first meeting, then-Assistant Attorney General Laurie Robinson told SAB members she hoped the Board could play six key roles in support of OJP.

  • Look at the broad role of science within OJP and how we can better integrate what we learn from science in to our programmatic design and spending;
  • Think about ways, of course, to strengthen the research and statistical functions within OJP;
  • Suggest broad priorities on which research might be focused.
  • Consider and make recommendations about institutional ways to protect the science here going into the future.
  • Think about ways that OJP can more effectively connect researchers with practitioners and policymakers – particularly on translation of evidence – and generally serve as an avenue for outreach to the field and a promoter of a two-way dialogue;
  • And finally, play a helpful role in providing advice and counsel to us on
    practical concerns, like improving the way we handle peer review.

The members of the SAB were very conscious of Robinson’s fourth point, which she described as “critical.” As she pointed out:

We may not enjoy the support for science in future Assistant Attorneys General and Attorneys General that we have today. The Justice Department is a lawyer culture and we know from history that it can be hostile to science. We need to build in protections.

During 2016 the Board devoted considerable effort to preparing advisory notes for the field.

We joked (before we knew the outcome of the 2016 election) that these advisory notes represented our “message in a bottle,” that would be set afloat on the broad ocean of political change, and we hoped they would be of service to future researchers and policymakers.

The statements represented the consensus views of the diverse membership of the Board, were approved by a vote of the Board, and then promulgated on the Justice Department’s website on January 17, 2017.


science advisory board

Members of the now-disbanded Science Advisory Board of the Department of Justice


Advisory Statement 1 clarified the important but limited role of randomized controlled trials in the development of effective policies and practices, including:

Randomized controlled trials (RCT) generally provide the strongest or most defensible causal evidence for programs and practices, but it may not always be possible to implement successful RCT evaluations in the field. Many important questions in the field of justice are not answerable using RCT studies—either for practical, economic, political, or ethical reasons.

 Research questions that are very difficult or expensive to answer using experimental methods may merit the necessary investment if they have widespread or profound social consequences, just as research questions with only modest consequences still merit experimental investment if they can be answered easily and at little cost. Funding for RCT evaluations should be managed like an investment portfolio with resources concentrated on the most effective combinations of theoretical salience, research feasibility, and social benefit.

Advisory Statement 2 focused on the role of evidence in justice policy and practice, including:

The strength of evidence required to judge the value of programs and practices in the justice field is a question of balance. Judgments should be based on the best available evidence, but the strength of evidence required for any decision is gauged by the costs of error and the burden of increasing evidentiary quality.

 Decisions with little consequence require less accurate evidence and less exhaustive evidence. Highly consequential decisions require more evidence. Navigating the continuum of evidence-supported decision-making is complex and subjective. The available evidence for any policy, program, or practice is not the product of a straightforward and untrammeled search for effectiveness. It emerges from a contentious and inherently political process that governs social investment in research.

Advisory Statement 3 examined the responsibility of policymakers and researchers to both identify and develop effective interventions and strategies, including:

 Justice programs are generally designed to achieve specific purposes, and produce intended effects. The effects of an intervention on the target population, both intended and unintended, are known as outcomes.

 Recidivism is the most common outcome of interest within the justice field, but other measures are used, including satisfaction with services, impacts on drug use, employment, educational success, and the legitimacy of criminal justice agencies across communities. Identifying the correct outcomes for a policy, program or practice is a basic task associated with program development, performance measurement, and program evaluation.

 There are a number of considerations related to outcome measurement that OJP must consider in drawing inferences about the effectiveness of justice programs. These include: primary and secondary outcomes, unintended outcomes, cost/benefit, implementation fidelity, and efficacy versus effectiveness research.

The SAB and its meetings and products were an effective means of infusing scientific thinking inside of the federal justice structure with the hope that all aspects of criminal justice, juvenile justice, and the much larger concerns of social justice would be informed by evidence.

Jeffrey Butts, PhD.,director of John Jay College’s Center for Research and Evaluation

And, just as importantly, that the production of future evidence would be sensitive to a broader range of interests and considerations—not simply mirror the preferences of current office holders.

I miss it already.

Jeffrey Butts, PhD., is director of the Research and Evaluation Center at John Jay College of Criminal Justice. This essay was originally published in Dr. Butts’ blog. He welcomes readers’ comments.


Fixing America’s Cold Case Crisis

Since 1980, the U.S. has recorded 248,933 unsolved homicides, and the number is growing  ominously each year. An expert on cold-case investigations writes that a forthcoming federal ‘Best Practices Guide” offers a path forward—if police are willing to take it.

As each year passes, we are adding thousands of unresolved homicides to the nation’s cold case dilemma.

According to the FBI’s Uniform Crime Reports and the Murder Accountability Project (which uses the same FBI Crime Reports data), the U.S. has accumulated over 248,933 unsolved murders since 1980.

This number is bound to grow—and it should worry Americans. Even if only a fraction of those unsolved murders mean that guilty individuals are still walking the streets and capable of killing again, it represents a persistent threat to public safety.

To make matters worse, recent studies have determined that only about 18 percent of the nation’s 18,000-plus police agencies that have cold cases actually have a “cold case unit” to investigate these incidents. And about 20 percent of those units do not have proper protocols in place to guide them through the process in the most effective way.

But there is a path forward.

A National Best Practices Guide prepared by the National Institute of Justice (NIJ) is expected to be ready early next year, with recommendations on how to implement and sustain a cold case investigation unit within police departments. This document explicitly declares that we are in a “Cold Case Crisis” that needs our immediate attention.

To get a sense of the size of the crisis, please see the accompanying table, which covers the 23 cities who reported over 100 homicides during 2017.

SOURCE FOR TABLE: The Murder Accountability Project which uses FBI Crime Data. Population figures were obtained from the US Census Bureau.

The cities are ranked based on the rate of homicides per 100,000 population. The higher the number, the more severe the problem; but the national average was 5.4 per 100,000.

Following the rate are the number of homicides each city solved that year with their percentages. The average solved percentage for 2017 was 61.6 percent.

The last column reflects the total number of cold-case unresolved homicides each city accumulated since 1980.

Note that complete data is missing from two of the country’s biggest cities: Chicago and New York. That’s because in multiple years they did not report clearance/solve data to the FBI; therefore an accurate evaluation could not be made for those categories.

Only eight of these cities (New York, Las Vegas, Dallas, Milwaukee, Los Angeles, San Antonio, Washington DC, and Nashville) had a solve percentage above the national average. Fifteen were below the average, which is indicative of an issue that needs our attention as well.

In 2016, the national clearance was 59.4 percent, the lowest since records were kept.

That means roughly four out of every 10 homicides are unsolved.

You should ask: What is your city doing about this?

The light at the end of the tunnel could be the upcoming NIJ Best Practices Guide. It is the culmination of ideas, research and concepts considered during several meetings from a national group of cold case experts assembled through the NIJ Cold Case Working Group to formulate a workable guide. I was a member of this group.

Although the document is still awaiting official release, I’m able to highlight some of the conclusions that I consider to be the keys to solving our Cold Case crisis.

First, the problem: Today’s law enforcement is oriented towards the present and the future with little attention given to the past, in spite of the fact that thousands of families are living without answers, and justice is not being properly served.

If you were to ask police officials in one of cities listed in the table, “How many cold case homicides do you have?” I wager that they either do not know, or the figure they provide will be far below the numbers I have provided.

Not knowing increases the odds that the problem will get worse over time.

The biggest obstacles facing police departments today concerning the investigation of cold cases are commitment, manpower and funds.

A critical start to addressing the problem is a taking a simple inventory of all unresolved cases. This will serve as a baseline to work from, for the present and the future.

But using that baseline requires commitment, and that requires a “dedicated” cold case unit where the detectives are full time, only investigate cold cases, and are not pulled into other investigations. Just having part-time detectives is better than nothing, but it is like placing a band aid on a gushing wound.

Inadequate manpower is the next hurdle.

Detectives already spend about 60 percent of their time accomplishing administrative functions on the job. Cold case investigations, especially during the early stages of organizing case files, which involves reviewing them and analyzing their prospects of being solved, will significantly raise that percentage.

To address this problem, agencies could consider utilizing vetted outside sources such as retired police officers, professors, grad students and other business people to conduct the mundane administrative tasks associated with this process.

This would allow the full- time detectives to spend more time investigating.  For example, Charlotte, NC has nine unpaid volunteers. That has helped the local police achieve a clearance/solve percentage for 2017 of 90 percent. Their average of 73 percent over the period since 2004 is  far above many cities of their size.

Then there’s the money question.

Non-profits (such as mine, the Mid-South Cold Case Initiative), along with other organizations in our community, could easily donate funds earmarked for cold case investigations, and therefore help to lessen the burden on the police department.

Charlotte, for example, has received private funding support from local community sources. There’s no reason why other cities cannot do the same.

But the real key to overcoming the hurdles is political momentum. And that requires pressure from local citizens and community leaders who understand how high the stakes are.

Jim Adcock

James M. Adcock

Unless that happens, our national cold-case crisis is likely to geometrically worsen.

See also: “Murder on Hold: Rural Cops Need Help to Solve Rising Cold Case Backlogs.”

James M. Adcock, PhD, a retired US Army CID agent, a former Chief Deputy Coroner of Investigations in Columbia, Richland County, SC, and a former Tenured Professor at the University of New Haven, has spent the past 19 years specializing in cold case homicides by training law enforcement, researching, and reviewing cold cases for agencies around the U.S. He has written two books one on Cold Case Investigations and the other on Death Investigation, both second editions. He can be reached at 901-468-6100, by email to or through his website


Wanted: Judges Who Can Change the Way Police Treat Youth

The large number of federal judicial openings this year represents an opportunity to pick judges who can make sure police live up to legal precedents preventing them from treating young people as adults, argue two youth advocates.  

Adult to child: “You should know better.”

It’s time courts said something similar to law enforcement agencies.

The unusually large number of judicial appointments for openings on the federal bench this year presents a unique opportunity to respond to calls for improved policies and better training for law enforcement in its interactions with youth.

The scientific evidence is clear: young people are developmentally different than adults. Yet courts routinely excuse police agencies for failing to train officers to strategically handle routine interactions with youth.

Instead of requiring law enforcement agencies to adopt strategies reflecting an understanding of the limited maturity, poor impulse control and proclivity for risk-taking that is a hallmark of normal adolescent development, courts continue to ignore the unique legal status of youth by applying adult precedents.

Lisa Thureau

Lisa Thurau

Youth harmed by the excessive use of force by police can sue for civil rights violations under 42 U.S.C. § 1983 and by bringing a so-called Monell claim against the respective agency or municipality. Generally, a Monell claim requires a plaintiff pushing for systemic change to allege “an underlying constitutional violation.”

Several rulings have established precedents for such claims.

In Kitchen v. Dallas County, Tex., establishing “municipal liability” under section 1983 requires proof of: “(1) a policymaker; (2) an official policy; and (3) violation of constitutional rights whose moving force is the policy or custom.’

Supporting rulings were handed down in Tunica County, Miss. v Hampton Co. Nat. Sur., LLC.

In other decisions, the absence of policies for situations that should have been anticipated by law enforcement could also lead to a finding of liability.

 Yet, only two courts have held law enforcement agencies and cities liable for failing to implement policies and training that would prevent police from inflicting harm on youth.

That’s an avoidable problem.

Daniel Pollack

Prof. Daniel Pollack

Monell claims can succeed if courts mandate law enforcement agencies to integrate U.S. Supreme Court decisions regarding the “signature characteristics of youth” into their policies and practices. This would require police agencies to adopt the judicially recognized facts regarding youths’ developmental abilities.

Since 2005, there have been five U.S. Supreme Court decisions reiterating these facts and directing juvenile justice stakeholders to adjust their practices accordingly.

However, in the jurisprudence of Monell claims for law enforcement misconduct towards youth, the U.S. Supreme Court’s decisions on the legal obligations of system stakeholders are nowhere to be found.

Requiring the police to treat youth according to their actual functional and developmental abilities is hardly a new idea. In 1948, the Supreme Court ruled in Haley v. Ohio,that beating of a 15-year-old African-American boy to obtain a confession was improper.

The Court took special judicial recognition of age in its decision:

“A 15-year old lad, questioned through the dead of night by relays of police is a ready victim of the inquisition…we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic.”

ln 2005, in Roper v. Simmons, the Court forbade the use of the death penalty for youth who had committed a capital offense before turning 18.  In that decision, the Court endorsed the judicial recognition of the “signature characteristics of youth” – including enhanced susceptibility to outside pressures and possession of characteristics not as well formed as those of an adult.

The Court reiterated these views in three cases between 2005 and 2016: Graham v. Florida; Miller v. Alabama and Jackson v. Hobbs; and Montgomery v. Louisiana. These cases abolished the automatic use of life without parole for youth, and permitted retroactive application of the ruling.

In 2011, the Court, in J.D.B. v. North Carolina, required that age be considered when determining when to “Mirandize” youth:

“In many cases involving juvenile suspects, the (Miranda) custody analysis would be nonsensical absent some consideration of the suspect’s age. (2405) In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult (2407)…”

So, we’re all on notice: Lawmakers, judges, and police officers are legally bound to treat youth differently.

Recognizing these decisions would have helped several federal court judges promote improved training and policies for officers. Consider for instance, Judge Abdul Kallon’s 2015 decision in J.W. v Birmingham Bd. of Educ. In this case, school resource officers (SRO) deployed by the Birmingham Police Department routinely used Freeze +P (mace) over a five-year period, spraying over 100 students, including pregnant girls, for explanations that defied reason.

In one example presented to the court:

“Without telling G.S. to calm down, that she was under arrest, or that he was about to spray her with Freeze +P, Officer Clark sprayed G.S. in the face, and G.S. fell to the ground.”

SROs also failed to decontaminate youth who had been sprayed. The BPD’s policy allowed the use of chemical sprays on adults who resisted police commands. The court found that police violated the Constitution when they sprayed youth who verbally resisted commands or had not resisted at all.

Ye, it did not find either the police department or the city liable for their failure to train SROs, in spite of strong evidence of their long pattern of abusive use of chemical sprays on youth.

Instead, Judge Kallon sidestepped this opportunity by citing Eleventh Circuit precedent involving adults:

 “Although it seems “obvious” in the layman’s sense of the word that the circumstances at issue in this case would lead to an unconstitutional use of force, in light of the Court’s unwillingness to apply its aside in Canton, the court declines to base its conclusion on an obvious need for training.” [emphasis added]

More recently, Judge Jane Stranch, in her concurring opinion in the U.S. Court of Appeals for the Sixth Circuit in B.R. v. McGivern, expressed her conviction that officers need to be trained to work with youth.

This case involved flagrant police mistakes regarding interrogation of an 11-year-old girl accused of the rape of three older girls. The investigating officer was aware from Facebook posts that the older girls had frequently bullied the 11-year-old.

Judge Stranch concluded:

“…it is of unquestionable importance that law enforcement officers receive proper training and support in how to understand and interact with children – whether they are accusers or the accused – in a way that recognizes the unique needs and vulnerabilities of children.”


Unfortunately, that’s as far as the Sixth Circuit went in coaxing law enforcement to improve their policies and training to protect other youth from similar harm.

Courts must go further.

They must insist that law enforcement agencies are on notice and must provide developmentally appropriate, trauma-informed policies and training to guarantee the humane treatment of youth.

Such policies recognize that children experience innumerable types of trauma in their lives, understand the influence of such trauma, and respond to its effects. They do exist and training for police in strategies for implementing them are available.

Courts need to do more to direct law enforcement agencies to avail themselves of these resources.

Courts to law enforcement agencies: “You should know better.”

Lisa H. Thurau is executive director of Strategies for Youth. She can be reached at Daniel Pollack is professor at Yeshiva University’s School of Social Work. He can be reached at They welcome readers’ comments.


Behind Bars, Raging Against the System Can Be Therapeutic

Correctional institutions now offer a wide range of rehabilitative programs like Yoga classes to help inmates endure their time. But finding ways to channel quiet anger as prizewinning prison writer Arthur Longworth has done, may be the best survival mechanism, writes a Washington State inmate.

Savvy prison systems such as the Washington Department of Corrections (WDOC) tout dog training programs, sustainability projects, and yoga classes to market their humane and rehabilitative environments to members of the public who are curious enough to want to know what is occurring inside of them.

Yet behind the window dressing, there remains “a trace of ‘torture in the modern mechanisms of criminal justice,” and it is “enveloped increasingly by the non-corporal nature of the penal system.”

Those are the words of Michael Foucault, and they apply to the institution where I am serving a life sentence, as well as to most others.

Those who are confined must endure, according to Foucault:

…physical and sexual deprivation; undernourishment; limited access to healthcare and hygiene; the pervasive odor of urine, disinfectant, and stale food; the noxious and threatening proximity of other bodies; the claustrophobic pressure of confinement and crowding; and the endemic hazard of physical violence, whether by guards or by other inmates.

That’s one reason tension between guards and inmates is all too common in correctional settings.

However, I have learned that it is prudent to cloak my anger and hostility. Being perceived by one’s keepers as a malcontent can result in reprisals, especially in minimum custody facilities where the perception amongst staff is that prisoners—who have the luxury of living in less repressive settings—have too much to lose to react violently when treated unjustly.

Emboldened by this belief, many guards will not hesitate to pluck a seemingly hostile prisoner out of a crowd and pat-search them aggressively.

They will frequently search these prisoners’ cells under pretexts and leave them in shambles.

They will confiscate their property illegitimately and claim it violates policy.

Staff will delay or “lose” paperwork that requires approval for prisoners to obtain jobs, schooling, and transfers to work release.

Such examples illustrate why I don a mask of equanimity. Yet for some prisoners, becoming a sphinx does not inoculate against capriciousness. Those who use writing as a means for venting their discontent and have the nerve to let those views be published can face repercussions.

Case in point: Arthur Longworth, an award‑winning author whose portraits of WDOC have incensed many correctional officials and turned them into petty tyrants when dealing with him.

After having his drafts seized by mailroom staff, getting banned by administrators from participating in volunteer programs, and being dogged by investigators trying to determine whether he profited from publication of Zek: An American Prison Story, Longworth was left to muse in an interview:

To be honest, I don’t understand what bothers them about my writing or why they go to such extremes to punish me for what I’ve written, as well as do all they can to prevent me from writing more. When I look at my writing, it seems to be merely an attempt to convey the experiences of long-term prisoners.

What Arthur Longworth’s experience manifests is that the retributive ethos is omnipresent within the correctional system.

He wrote that prison staff—no less than members of the public—often find “the notion repugnant that convicted murderers, rapists, robbers—subhuman persons—could thrive in a place that should serve as their demise.”

To such minds, we were confined solely to be punished; we have no business complaining as if we are suffering injustices.

To be honest, I despise those who hold such sentiments. Indeed, Nietzsche would also be revolted by those who hold such views, a feeling “actuated less by pity for the suffering of those punished than by the disgust with those who rationalize that suffering….”

Regardless, to those who believe prisoners are working off a debt to society and, by reason of this, are unfit to feel anger that is righteous, Arthur Longworth’s writings are heresy and he fully deserves the backlash he engenders from administrators within WDOC.

There is an irony to this.

In writing about the true nature of imprisonment, as opposed to lashing out due to their predicament, prisoners are employing the very methods that correctional systems force-feed them through cognitive behavior therapy (CBT).

For those unfamiliar with this treatment, the core premise of CBT is simple, according to an article in the National Institute of Justice Journal:

The way we think about situations shapes our choices, behavior and actions. If flawed or maladaptive thoughts, attitudes, and beliefs lead to inappropriate and even destructive behavior, then changing thoughts, attitudes and beliefs can lead to more appropriate, pro-social behavior.

Instead, the object of the Stress & Anger Management CBT program within WDOC is to help “offenders recognize their angry feelings, learn their causes, and deal with them in a new way—a responsible way—probably not the way they learned to deal with them in the past,” according to the aptly titled Cage Your Rage workbook.

Consequently, prisoners are given some of the following instructions for responsibly managing their stress and anger:

  •  Don’t keep angry feelings bottled up inside. They will only cause you problems and pain.
  • You know that built-up anger only makes a situation worse—worse for yourself and worse for others.
  • If we don’t deal with our feelings of anger, they only lead to aggression.

In fact, caging one’s rage “doesn’t mean you should get rid of all your anger [because] anger does have some good uses,” according to the Cage Your Rage script.

From this perspective, Arthur Longworth is a CBT success.

Every time that he manages his anger and stress by weaponizing his pen rather than beating and slashing his keepers, he proves that anger can indeed be put to good use.

As a twist, the final lesson from CBT appears to be that taking to heart the rehabilitative programing provided by WDOC can actually lead to ruin, and, confirms Durkheim’s view that “the essence of punishment is irrational, unthinking emotion fixed by a sense of the sacred and its violation.”

In the end, the pen becomes a blade for a prisoner to perform Seppuku.

In a 2017 article in the Punishment & Society journal, Prof. Steve Herbert recognizes that prisoners such as Longworth who are serving life sentences “exemplify and enact the human capacities for connection, generosity, resilience, and atonement; for these and other reasons, their experiences deserve greater consideration and discussions of punishment policy.”

Jeremiah Bourgois

Jeremiah Bourgeois

He is right in this.

As author Joe Lockard writes, “one of the strongest forces against mass incarceration is the voice of prisoners themselves.”

Accordingly, I hope Arthur Longworth remains committed to being a voice for the mass incarcerated through sharing his perspective.

Let him continue to follow Psalm 4:4— “Be angry, and do not sin.”

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He is currently petitioning for release from the Stafford Creek Corrections Center. Readers who wish to support him are invited to sign up here.


The Children Who Will Miss Thanksgiving

The First Step bill isn’t the only piece of justice legislation stalled in Congress. A bill to overhaul the Juvenile
Justice and Delinquency Prevention Act—affecting 45,000 children held in custody– is still awaiting the Senate’s OK.

As families gather tomorrow to break bread, give thanks and count their blessings, there are 45,000 children locked in secure facilities across this country who will be absent from their families’ tables.

Some 4,000 of them will be in adult jails.

It doesn’t have to be this way.  Many states have made great strides in not only removing children from secure custody (a 55 percent drop in a little over ten years), but also in removing them from adult jails.  Some 70 percent of youth charged as adults are now detained in youth facilities.

All of this has happened while youth crime has fallen to near 40-year lows.

Sarah Bryer

Sarah Bryer

The children behind bars are overwhelmingly African American, Latinx, and tribal youth—a vestige of this country’s sordid history of criminalizing and forcefully separating children of color from their families.

As members of the U.S. Senate sit down to eat with their children and extended families, how many will be thinking of these tens of thousands of children, who are too young to cast their votes in elections?

Who are silenced behind the tall and imposing walls of the legal system.

Who were too often silenced as victims before their first arrest.

Who are deemed unworthy and too often, forgotten, by those who wield political power.

As the buzz increases about the possibility of a compromise sentencing reform package, another bill, amending the 1974 Juvenile Justice and Delinquency Prevention Act (JJDPA), passed twice by the House, once by the Senate, sits quietly, patiently, invisibly—like the children it was designed to protect.

Marcy Mistrett

Marcy Mistrett

This JJDPA would help federal law on juvenile justice catch up to the states.  It would improve public safety by incentivizing prevention and early intervention, prioritizing families, removing children from adult jails, and helping states reduce their over-reliance on incarceration (especially for youth with non-criminal behavior like skipping school and running away).

The Act would provide a guiding framework to help states treat all youth equally so that we can eliminate the unfair racial and ethnic disparities in our systems.  And it would help states invest in community programs that work—by healing, holding accountable and, dare we say, loving these children.

This is a matter of priority—not partisanship, that could easily be settled with a five-minute conversation.  Yet, the shroud of silence continues.

So, dear Senators, as you sit with your children, grandchildren, and great-grandchildren please gather the will to do what is right; and bless those children who can’t be with their families, embraced, and fed this Thanksgiving.

Pass the JJDPA.

Sarah Bryer is the Executive Director National Juvenile Justice Network, Marcy Mistrett is the CEO of the Campaign for Youth Justice.


Do We Need Roadside Marijuana Tests?

As the number of states allowing recreational or medical use of marijuana grows, law enforcement is gearing up for the challenge of detecting drivers who may be a danger to themselves or others. But it’s impossible to set an accepted standard for measuring impairment, argues a TCR’ columnist.

As more states approve recreational marijuana (Michigan) and medical marijuana (Missouri, Utah), how will law enforcement meet the challenge of marijuana-impaired driving?

That includes both the consequences—such as accidents, sometimes fatal—and the detection of drivers who may be impaired..

There are no reliable or accepted means of testing for driving under the influence of marijuana. One study found biases that distorted the results of the three studies most often cited by law enforcement to validate existing tests.

The problem: marijuana is not like alcohol.

While alcohol in the blood is a good measure of intoxication, THC in the blood is not. Because THC is stored in the fat, traces of it in the body long outlast their euphoric or impairing effects. Depending on which test is used and how often the driver uses marijuana, all you may be able to determine is if the driver used marijuana in the past few hours, days or even weeks.

Even so, law enforcement is exploring multiple alternative tests:

  • Marijuana breathalyzers. At least two are under development from Cannabix and Hound Labs.
  • Roadside saliva tests. Again there are two competing products in the works: the Draeger DrugTest 5000 and the Alere DDS2.
  • Lab analysis of blood, urine, and mouth swabs, such as used for DNA tests, at the police station.
  • The DRUID (DRiving Under the Influence of Drugs) app. Using a tablet, the driver performs simple tasks to measure reaction time, hand-eye coordination and balance.
  • Drug Recognition Experts (DREs). Police officers are trained in a 12-step method to determine intoxication.
  • Standard Field Sobriety Tests (SFSTs). Basically the same type of drunk test given for alcohol intoxication, measuring things such as eye movements, pupil dilation and the ability (or lack thereof) to walk a straight line.

The problem with all of the chemical tests for how much THC is in the body—breath, blood, saliva, urine—is that they are not accurate measures of the driver’s impairment.

The problem with DREs and SFSTs is that they are subjective. At least six states—including California where the test originated—don’t allow DREs to testify as experts in court.

In contrast, some police departments—including in Georgia’s Cobb County— trust the results of their DREs above scientific evidence. Even if there is no trace of marijuana in the bodily fluids—and these can last for days or weeks after last use—they still believe their DRE’s evaluation. (Polygraph proponents have a similar confidence in their methods, but many courts don’t accept them as evidence either.)

Another reason not to trust marijuana tests is false (or at least misleading) positives.

Cannabidiol (CBD) is a non-euphoric component of marijuana that is believed by many to have medical uses—maybe most or all of the benefits associated with medical marijuana—such as reducing chronic pain, anxiety, and preventing epileptic fits in children.

The last led to Food and Drug Administration approval for the CBD drug Epidiolex.

CBD cannot get you high, but its legal status, aside from Epidiolex, is hazy. Some states that haven’t approved medical marijuana have nonetheless approved CBD. According to some sources, CBD is legal under federal law as well and under UN Conventions.

Sometimes it isn’t considered a drug at all, only an herbal remedy like many sold in health food stores and unregulated. It is sometimes found in other places, too, such as gas stations and marijuana dispensaries.

The CBD sold in marijuana dispensaries likely has better quality control. You’re more likely to get what you’re asking for. In less regulated settings, it could contain more THC than claimed or even synthetic marijuana, also known as Spice or K2.

Caveat emptor.

The problem with CBD and drug testing is that since CBD does contain at least a trace amount of THC—though no more than 0.3 percent—a test for marijuana may detect that tiny, tiny amount.

It’s not clear how necessary it is to test for marijuana, however. While some reports from states that have legalized recreational marijuana claim there is a large increase in the number of accidents, fatal and otherwise, since legalization, and of drivers with THC detected at the time of their accidents or impairment, they do not control for all variables and are not always accepted as legitimate.

The National Highway Traffic Safety Administration (NHTSA) did try to control all variables for a “crash-risk” study—“the first large-scale study in the United States to include drugs other than alcohol”—included in its July 2017 Marijuana-Impaired Driving: A Report to Congress.

The study—for which “research teams responded to crashes 24 hours a day, seven days a week over a 20-month period” in Virginia Beach, Virginia—controlled for the presence of alcohol and other drugs, “the demographic variable of age, gender, and race/ethnicity,” plus location and time of day.

Its conclusion: “There was no increased risk of crash involvement found over alcohol or drug-free drivers.”

Much more common was the risk of crash involvement when the driver tested positive for a combination of prescription drugs or alcohol and marijuana.

The NHTSA study isn’t perfect. Virginia is not a state that allows recreational cannabis use. It’s possible that where it is allowed, greater use results in greater problems. So far it doesn’t seem to be a major problem in California, however; nor is marijuana dependency a strain on the state’s top-rated addiction treatment centers.

An alarmist news story warning of possibly increasing cannabis-related auto accidents in the Bay area admitted that there have been no deaths there due to traffic collisions involving a “cannabis-only DUI arrest.”

Los Angeles County in California did have two convictions for fatal wrecks in which marijuana was the only substance detected since 2016, but deaths from alcohol-only DUIs are far higher.

Marijuana impairment tends to have the opposite effect of alcohol. Drivers tend to be more cautious, go slower, keep more distance between the car ahead of them, and don’t try to overtake them. Even at higher speeds, though lane control is poorer than with sober drivers, they still recognize road signs and can change lanes and respond to road hazards. In fact, according to one analysis, “low concentrations of THC do not increase the rate of accidents, and may even decrease them”.

However, high concentrations of THC or, when it is used in conjunction with alcohol, result “in impairment even at doses that would be insignificant were they of either drug alone.”

Another study—Driving While Stoned: Issues and Policy Options, from De Gruyter’s Journal of Drug Policy Analysis—concluded that “The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone”.

The authors recommend “criminalizing only combination use”—that is, when marijuana is combined with prescription pills, alcohol, or other intoxicants—“while treating driving under the influence of cannabis… as a traffic offense, like speeding”.

Stephen Bitsoli

Stephen Bitsoli

No one suggests law enforcement should look the other way when a stoned driver crosses their path, and let’s hope a reliable and accurate test is developed, but that’s no reason to oppose marijuana legalization.

So far it looks like it is less of a concern than those opponents would like us to believe.

Stephen Bitsoli writes on drug policy, addiction, and related subjects for several websites. A former journalist and a lifelong reader, Stephen loves learning and sharing what he’s learned. He welcomes readers’ comments.


Probation and Parole Called a ‘Monstrous Drain’ on State Resources

Today’s community supervision systems damage the lives of the formerly incarcerated and are a poor use of taxpayers’ dollars, say two policy researchers. A bill currently being considered by the Pennsylvania legislature is a promising effort to change course.

Probation and parole were envisioned to help reduce the prison population and provide some structure and aid to those re-entering society. However, these systems have metastasized into a monstrous drain on state resources, even as they have damaged the lives of the formerly incarcerated.

Jesse Kelly

Jesse Kelly

By reforming the system of supervision, the criminal justice system can accomplish its goals of seeking justice for victims, while rehabilitating those who have become involved in crime.

Probation and parole serve similar but distinct functions. In both cases, the individual is under state supervision in lieu of detention and must adhere to certain conditions. Yet while probation allows a defendant to be released for a certain length of time in lieu of incarceration, parole involves the release of a prisoner before his or her sentence is completed.

Arthur Rizer

Arthur Rizer

Despite their shared goal of keeping people out of prisons, both systems are creating an additional layer of state-sanctioned control and surveillance, as well as exacerbating rather than inhibiting the cycle of crime in a community.

In Pennsylvania alone, more than a quarter of a million people are supervised by the Board of Parole and Probation.

Indeed, a report by the Columbia Justice Lab listed Pennsylvania as having the third-highest supervision rate in the country, noting that “in Pennsylvania, one out of every 34 adults is under community supervision, a rate 36 percent higher than the national average.”

Given the number of people under supervision, those employed as probation and parole officers have massive caseloads, which decreases the effectiveness of supervision.

*In Pennsylvania, each county probation officer actively supervises 113 people at any given time.

Larger caseloads can increase recidivism rates. In fact, the Journal of Crime and Justice studied how larger caseloads can worsen probation outcomes and found that a larger caseload increased the rate of recidivism by roughly 30 percent.

Aside from these overwhelming caseloads, the extended length of probation and parole does not increase public safety. The risk of an inmate reoffending once released on supervision decreases after the first year. The National Institute of Justice has studied this phenomenon and found that of those prisoners who were re-arrested, more than half — 57 percent — were arrested before the conclusion of the first year.

And in New York, those released early from probation were less likely to be arrested for a new felony in their first unsupervised year than those who were on probation for their full term.

For individuals on probation or parole, it can be difficult to comply with the terms for long periods of time, and violating these terms can result in re-arrest. Generally, a few terms are present in any type of supervision — such as securing or maintaining employment and drug abstinence — but special conditions from a judge can be added to individual cases.

And at times, these conditions can give far too much leeway to a judge’s interpretation of what counts as a violation.

For example, in New Jersey, one judge ordered that probationers “not enter disreputable places or associate with disreputable people.” One client under said condition was arrested in a bar for simply being in that bar and having a drink.

In addition to any criminal fines or court costs, a person on supervision must pay a monthly supervision fee. Failure to pay supervision fees may be viewed as a probation or parole violation, which could result in the court revoking an individual’s parole or probation and imposing a predetermined prison sentence on that individual.

For those who have not committed any infraction other than failing to comply with parole or probation conditions, jail time is all too often the result.

Anthony Williams

Pennsylvania State Sen. Anthony Williams

As Pennsylvania State Sen Anthony Williams (D) has said, “Approximately one-third of all beds in state prisons are occupied by people who have violated the conditions of their probation. These are often individuals who pose no real danger to society.”

In an effort to reduce this overwhelming statistic, as well as the other issues that create barriers to effective parole and probation, Sen. Williams introduced a Senate Bill 1067 earlier this year.

The bill — now awaiting a hearing in the state Senate Judiciary Committee — aims to limit the length of probation. Additionally, the legislation would limit a judge’s ability to jail probationers for technical violations that do not threaten public safety and would incentivize good behavior by allowing judges to reduce probation time.

To combat supervision officers’ burdensome caseload and decrease the negative impact of excessive supervision on individuals in the justice system, exploring solutions — like those proposed in SB 1067 — can lead to reforms that ultimately produce positive strides toward greater public safety.

Jesse Kelley is a Criminal Justice policy analyst and Arthur Rizer is Director of Criminal Justice and Civil Liberties Policy at R Street.


The National Crisis of the Public Defender System

Constitutional guarantees of equal protection look hollow to poor, working-class Americans who are forced to turn to under-funded and overworked public defenders’ offices when they are in trouble with the law.

Since childhood, many of us were taught that our courts and criminal justice systems were fair for all, including the poor. We believed that, as Americans, we were entitled to the “equal protections of the laws” guaranteed by the Fourteenth Amendment.

These constitutional guarantees always depended on meaningful legal representation. But for many poor working-class Americans, those guarantees are hollow.

A lack of financial resources means that the working-class poor must rely on our country’s under-funded, understaffed and overworked public defenders’ offices.

This is the point where the scales of justice tip in favor of the state, away from the accused, and the fallacy of “Equal Protection” is exposed.

From coast to coast the U.S. public defender system is in crisis.

To take one of the worst examples, the Missouri Public Defender allocates a paltry $356 per indigent client, and state resources limit the average time spent with a client to 8.7 hours for serious non-homicide cases.

Both facts have earned Missouri the dubious distinction of being ranked 49th out of 50 states for monetary allocations allotted to each public defender client. They also fall 11.3 hours shy of the minimum American Bar Association recommended time per client.

You can find a similar story in Louisiana.

A 2015 review of the Louisiana Public Defenders Board revealed that 85 percent of felony defendants in New Orleans used the services of the Public Defender due to their limited income status. But the annual 2015 budget for the parish Public Defender was a third of what the local District Attorney’s office received.

Another example:  Clayton County, Georgia (just south of Atlanta), where according to the 2017 budgetary allocation for all Clayton County departments, the District Attorney’s office received 45.8 percent more allocations for their “general funding” than did the county Public Defender’s office for their total operating budget in the same 2017 fiscal year.

In addition to this shameful disparity, the 2017 fiscal budget for the District Attorney received a .95 percent increase over and above their 2016 budget, while the county scaled back the Public Defender’s office budget by a .95 percent decrease.

It doesn’t help matters that the Clayton County Public Defender is, reportedly, struggling to keep qualified staff who leave for higher paying jobs in the private sector.

Is that “Equal Protection?”

If we dig further, research tells us that between 94 percent and 97 percent of all U.S. criminal cases are adjudicated via plea bargain. A vile collateral consequence of this practice is the lack of equal protection in the plea bargain process, where an untold number of innocents have little choice but to accept a guilty plea.

When you consider that the rate of conviction hovers around 95 percent for cases taken to trial, what choice does an indigent individual have?

Either plead to a crime he or she did not commit or take a chance and go to trial with a poorly funded, understaffed Public Defender who may have invested a mere two or three hours in talking with the accused, and wind up with far more prison time than what a plea bargain offer would have achieved.

It shouldn’t surprise anyone that the fallacy of equal protection has real-world consequences.

An estimated 100,000-240,000 innocents are locked up in our prisons, according to a recent Chicago Tribune essay by renowned author (and licensed attorney) John Grisham.

His analysis is supported by various studies.

Norris Mcmanus

Norris Z. McManus

How many more people will be ground into dust by the “Equal Protection” fallacy?

Norris Z. McManus is a pseudonym for a freelance writer who lives in the metro Atlanta area. McManus describes himself as an “ex-con heavily involved with prison reform, and a connoisseur of cheap bourbon.” He welcomes comments from readers.








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

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

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

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

This month’s midterm elections deepened the trend.

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Adam Gelb

Adam Gelb

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

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

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