Congress shouldn’t rest on its laurels following the landmark sentencing overhaul bill signed into law in December, writes one of the original advocates of the legislation. He argues the changes should be part of a major ongoing effort to reform the U.S. justice system.
A poignant moment during the recent State of the Union address was listening to the story of Matthew Charles, a former prisoner who became one of the first persons released from incarceration under the First Step Act.
Charles was one of several special guests of the president in attendance.
Signed into law during the closing days of 2018, the bipartisan First Step Act expands rehabilitative programming, modifies some mandatory minimum laws to provide more proportional sentencing, and provides a second chance to people like Charles who’ve worked hard to transform their lives while in prison.
The new law also freed Edward Douglas, who until recently was serving a life sentence in a federal prison for a nonviolent drug offense. Like Charles, Douglas used his time in prison to learn new skills and serve as a mentor to other prisoners.
The First Step Act is working in other ways too.
Despite the partial government shutdown, the Federal Bureau of Prisons has been implementing new compassionate release rules to help terminally ill prisoners and their families file for sentence reductions.
Ready for next step in prison reform? Photo by Kevin Burkett via Flickr
The law is also acting as a catalyst for states that haven’t yet reformed their criminal justice systems.
But as important as the law is, additional steps are needed to improve our criminal justice system. To bring about transformative change, policymakers at all levels must act.
The private sector, civic organizations and community leaders must also do their part to ensure that the formerly incarcerated can find work, housing and access the tools they need to succeed after being freed.
First up for government is ensuring that the provisions of the new law are carried out faithfully.
Make Sentencing Changes Retroactive
Congress should apply three of the law’s sentencing changes retroactively, to help people who received overly harsh sentences under outdated policies and pass other front-end reforms that prioritize prison beds for dangerous criminals while addressing low-level, nonviolent offenses through treatment and other programs that better serve this population.
In addition, Congress should codify the Supreme Court ruling that requires prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case.
Lawmakers can also address our over-incarceration epidemic by clarifying criminal intent standards and working to rein in our bloated federal criminal code and regulatory code, under which virtually anyone can be charged with a crime.
The Trump administration can act on its own to reform the executive clemency process to create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.
Needed: More ‘Clean Slate’ Laws
States can parallel many of these federal actions by removing barriers for people with criminal records. More “Clean Slate” laws, like the one enacted in Pennsylvania last year, will create second chances for people by unblocking them from jobs, housing, and education.
States could also increase the transparency of their criminal justice systems through more data collection and enhanced due process protections for citizens. Across the country individuals are incarcerated awaiting trial without considering other factors like the potential for flight risk, or whether the individual poses a threat to public safety, while others are incarcerated due to excessive fees and fines, and technical violations.
Research has shown that even a brief period in jail can increase the likelihood of a low-risk defendant committing a new crime.
Businesses can help transform lives and enable people to contribute to their communities by hiring qualified candidates with criminal records.
I’m proud to work for Koch Industries, which hires people with criminal records and recently signed the Getting Talent Back to Work pledge with the Society for Human Resource Management to end outdated, non-inclusive hiring practices.
We believe, as Winston Churchill did, in “an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man.”
We all share a moral imperative to help find and unlock that treasure, to unleash the potential in everyone.
If we all do our part, we can bridge the partisan divide and build on the great foundation provided by the First Step Act.
It’s time to take the next steps on criminal justice reform, this year and beyond.
Editor’s Note: Mark Holden will join Holly Harris of the Justice Action Network and Ohio Senate President Larry Obhof to discuss the politics of justice reform at this week’s 14th annual John Jay/Harry Frank Guggenheim Symposium on Crime in America. The conference will be livestreamed. The link will be announced shortly.
Mark Holden is general counsel of Koch Industries. Readers’ comments are welcome.
Prosecutors are arguably the most powerful people in the criminal justice system. But lack of transparency about their activities means the public can’t assess their effectiveness, say two leading reformers.
Your locally elected prosecutor is arguably the most powerful person in the criminal justice system. Armed with substantial enforcement discretion, prosecutors make daily, life-changing decisions on which laws to enforce, whom to charge with a crime, and what punishment to pursue.
Unfortunately, the public knows almost nothing about these individuals and what guides their decision-making.
The secrecy has allowed prosecutors to escape most of the criminal justice reforms enacted in recent years—and that should concern all of us.
Prosecutors’ actions explain much of the explosion in our nation’s prison population, meaning reformers have missed a crucial component of reining in mass incarceration. Reforms that change prosecutorial behavior are a crucial next step, and for that reason it’s crucial for the public to peer inside the “black box” of prosecutor offices.
The “standard story” of mass incarceration in the United States is that the drug war and long mandatory-minimum sentences are largely responsible for America’s notoriety as the world leader in incarceration.
Criminal justice professor John Pfaff questions this popular narrative in his book, “Locked In.”
While the drug war and long sentences have certainly had devastating consequences, these factors explain only a small piece of our incarceration boom.
Instead, Pfaff points to the daily charging decisions of prosecutors as the primary drivers of mass incarceration. His research shows that even as violent crime, and arrests for violent crime, declined, the number of felony cases filed in state courts substantially increased.
In other words, we’re simply admitting too many people to prison in the first place.
We also admit too many people to local jails, where low-level offenders serve time and un-convicted, pre-trial detainees languish awaiting case disposition. Last year, the number of individuals who churned through local jails stood at an astonishing nine million.
So why have we overlooked the role that prosecutors play in mass incarceration for so long?
Pfaff suggests that this is in part due to lack of data. Although available research allows us to identify prosecutorial behavior as an important driver of incarceration rates, as Pfaff notes, “We have almost no information whatsoever on what prosecutors do or how (or why) they do it.”
Given this reality, we should celebrate any transparency that prosecutors offer.
As a promising example, prosecutor offices in Jacksonville, Tampa, Milwaukee and Chicago recently participated in a groundbreaking study produced at Florida International University (FIU). The researchers surveyed line prosecutors in these offices to elicit their attitudes and priorities related to their duties. The project is one of the first to open the black box of prosecutorial behavior so that policymakers and reformer prosecutors can effectively lower jail and prison populations.
Prosecutors are not accustomed to this level of transparency, and we can expect some pushback and even negative coverage of the information that emerges.
An article in the Jacksonville Times-Union, for example, offered a not-so-rosy take on the FIU study, keying in on examples of some line prosecutors disagreeing with Jacksonville’s State Attorney Melissa Nelson on certain issues, and using this disagreement to imply widespread discord within the office.
This paints an inaccurate picture overall, as the FIU researchers also noted that Nelson was able to garner the 100-percent support of multiple prosecutors in her office.
We shouldn’t let potential press mischaracterizations discourage efforts to introduce transparency to prosecutors’ offices. One of the most important first steps to making a meaningful dent in our incarceration rates is to give policymakers and the public access to this information. Given that polling suggests prosecutorial transparency is wildly popular with voters, prosecutors can use transparency to signal that they are not satisfied with the status quo and to restore trust with skeptical communities.
Reformer district attorneys — who have sparked a wave of recent electoral victories across the country — can use this information to measure the success of their reforms.
Those with an interest in improving a broken justice system — which is all of us — should applaud transparency efforts and reward prosecutors like Nelson who share this information. And we should all hope that more elected prosecutors, both present and aspiring, continue to support the data-transparency movement.
Jonathan Haggerty (@JHaggrid) is the Manager of Criminal Justice and Civil Liberties policy at R Street Institute. Arthur Rizer (@arthurrizer) is a former prosecutor and R Street’s Director of Criminal Justice and Civil Liberties policy.
Drug addicts whose violent crimes once earned them the sobriquet of superpredators still languish in prison for years, with little hope of mercy, in defiance of contemporary thinking that treats opioid abuse as a disease that should be handled outside the justice system, writes TCR’s columnist from a Washington State penitentiary.
There is a strange parallel between the history of the so-called “superpredator” and the conception of “dope fiends.”
Not too long ago, “superpredator” became the favored word of some criminologists to describe the emergence of what was considered a dangerous threat to public safety in the U.S. A ruthless criminal concealed within the body of an adolescent male, he was often black, and his habitat was the inner city.
Violent criminal conduct was a unique, and terrifying, behavioral characteristic of these young beasts. When captured, the mantra “Adult Time for Adult Crime” supported sentencing them as if they were just as culpable as their fully matured counterparts.
Similarly, a much older phrase, “dope fiend” came back into use to describe those superpredators immersed in the world of illicit drugs. The stereotype was just as brutal: He (usually a he) was conceived to be a hedonistic, nihilistic hybrid, usually having dark skin, who sometimes spoke with a Hispanic accent.
Committing crimes to support his narcotic addition was a favorite pastime. And just as in the case of violent superpredators, he was the target of the “tough on crime” policies that sent so many young black men to prison in the 1980s and 1990s for long stretches of confinement.
Fast forward to 2019.
Now, there’s a broad consensus among criminologists that the so-called superpredator is better understood as a youth whose crimes more often than not reflect transient immaturity rather than irreparable corruption, and whose skin complexions encompass the color spectrum. The U.S. Supreme Court and last year, the Washington State Supreme Court, relied upon the attendant neurodevelopmental research findings to invalidate some of the harshest penalties for the kinds of juvenile offenders once written off as unreformable superpredators.
Even heinous crimes committed by young people are now viewed through a prism that mitigates their culpability.
I was once in the superpredator category myself. I received a life-without-parole sentence for my involvement in a murder at age 14—a crime that I have regretted ever since.
But the courts’ new approach gave me—and many others in similar situations—a path for hope. My sentence was amended retroactively, and I was given an opportunity to be freed. I received mercy.
But the stereotyped “dope fiend” version of the superpredator still stunts the lives of thousands of inmates in U.S. prisons today who were sentenced for crimes committed when they were young—despite a growing body of research that has made that version anachronistic.
For one thing, opioid addiction is no longer, sadly confined, to the poor young person of color.
We all realize that the opioid epidemic in America has destroyed the lives of soccer moms and rural white teenagers just as much as it has youths in the inner city.
The broad consensus that dealing with this crisis requires a public health approach rather than criminal justice machinery has spread to policymakers at federal, state and local levels.
But not to prisons.
All too often, these ameliorative approaches are only being implemented at the front end of the criminal justice system. Unlike former superpredators such as myself, mercy has yet to be applied retroactively to the sentences of opioid addicts imprisoned while they were young. Their lives are untouched by the contemporary recognition that their crimes were not simply a product of free will, opportunity and a rational calculus.
The case of Corey Irish provides one illustration of why such former drug “superpredators” should receive relief—notwithstanding the fact that their crimes occurred long before overdosed bodies began to pile up in refrigerator trucks from West Virginia to Ohio.
Late in the evening of April 23, 2007, in Tacoma, Wash., Daniel Garibay was just about to turn away from the customer he finished serving through the drive‑through window at Walgreen’s pharmacy when he heard a loud thump on the floor behind him.
The sound was Corey Irish landing on the floor after he leapt over the counter. The young man immediately began demanding drugs by their generic and non-generic names.
“When he first jumped in, at first he asked for Percocet, Oxycodone, and Vicodin…then it seemed like he just wanted anything,” Garibay told the jury during Irish’s trial in Pierce County Superior Court.
He was stunned when Irish pulled out two trash bags and told Garibay to fill them up. According to Garibay, “They looked like forceflex bags. He told me which drugs he wanted, and then he asked me to put them in the bags after I opened the cabinet.”
Meanwhile, Irish’s accomplice, who stood guard over the other two employees after flashing a gun in his waist line and corralling them into the stockroom, kept apologizing.
“I’m sorry I have to do this, you know…Just be quiet,” Jeanelle O’Dell recounted the accomplice saying as he made her kneel on the floor.
Mike Staten also recalled, “He kept apologizing for what he was doing, saying he wanted to be in and out.”
Back in the pharmacy, Garibay had moved on to filling up a third garbage bag that Irish made him get after the two that Irish brought with him were filled to capacity. Ten minutes elapsed from the loud thump Irish made when he landed behind the counter to when he finally lifted the bags filled with childproof bottles, summoned his accomplice from the stockroom, and began to leave with his haul of prescription narcotics.
The police arrived before the men escaped from the scene. Irish was arrested with the bags of OxyContin, Percocet, Valium and Vicodin, and everything in between. His accomplice fled empty-handed and was never apprehended by the police.
During the closing arguments of Irish’s trial, Sunni Ko, the deputy prosecuting attorney, rhetorically asked the jury, “Ladies and gentlemen, again, what do you think he was going to do with three bags of drugs? Do you think that he was going to keep them in his room and have it for personal use for the rest of his life?”
The notion that an addiction to prescription medication was powerful enough to make anyone do such a thing stretched belief. His intent was obviously to distribute the pills for profit, Ko argued to the jury.
The jury agreed.
At sentencing, Irish, who met the DSM-IV-TR criteria for opioid dependency, explained to the judge, “We wasn’t trying to hurt anybody. We just wanted some pills. And besides…I do pop pills, constantly. That’s why—not making excuses on any of that—but I mean, I do have a problem.
“Whether it was one bottle or 100 bottles I took, it was going to be a robbery anyway, so I mean, a thousand apologies, especially to the victims.”
His mother, a high school teacher, told the judge how she had tried to convince her son to get treatment before the crime occurred. His aunt, an assistant mayor, also implored the court, writing, “Corey needs the opportunity to enter a program where he can receive help for the drug problem and counseling to get to the root of his problems.”
The judge empathized with Irish’s family, but she had no sympathy for Irish.
He was sentenced to spend the next quarter century in the care of the Washington Department of Corrections—a prison term that exceeds the minimum sentence a defendant would serve for committing premeditated murder.
The Paradigm Shift
Criminal justice officials in Ohio probably would not be surprised upon hearing that someone tried to steal garbage bags filled with prescription pills from a pharmacy in a robbery. There, the opioid epidemic is so devastating that the foster care system has been overwhelmed by children who have become the detritus of addicted parents.
Tom Synan, Newtown Ohio’s Police Chief, has come to believe that addiction should no longer be considered a crime.
Experts on substance use disorders who have tracked the etiology of opioid addiction would also see a familiar theme with respect to how Irish went from being a supervisor at a fabrication company to the perpetrator of a drug store robbery.
After suffering a back injury in 2006, he was prescribed OxyContin during a period when pharmaceutical companies where downplaying its addictive properties, financial incentives led doctors to over-prescribe opioid pain medications, and the naive failed to perceive the signs of misuse and abuse going on around them because addicts did not fit the stereotypical image of a dope fiend.
They resided in the heartland.
They worked and went to church on Sundays.
They weren’t dark-skinned and had no accent.
During the 12 years that have elapsed since Irish was confined, legions of young men and women went from pilfering their parents’ pills when they were teenagers and snorting them with friends to shooting heroin. Nurses have lost their jobs for stealing narcotics from their elderly patients. Countless men and women have lost custody of their children.
Let us pause for a moment to reflect on the crack epidemic, the policies it generated, and the character attacks on the addicts. Whether America learned from these mistakes or the socio-demographic and white complexion of many contemporary opioid addicts brought enlightenment with respect to this latest drug epidemic, I can only guess.
In any case, the criminal justice system is already bursting at the seams due to mass incarceration. It therefore comes as no surprise to me that officials have lost the appetite to use demonization and imprisonment as expedients for dealing with the opioid epidemic—especially since the problem exists within their own communities.
I can imagine policymakers deliberating about establishing drug courts, implementing diversion programs, and funding more treatment centers now that a drug epidemic is not confined to the inner city.
“These people need help. They have a disease. We can’t just lock them up and throw away the key,” I can hear them saying.
But those still confined before these sentiments affected the criminal justice system are seemingly left out of such discussions.
Recall that retribution was warranted because it was believed that these people were driven solely by their criminogenic needs. Their addictions, in and of itself, manifested they had little interest in being a part of law-abiding society.
But that was the past. The scientific consensus that opioid addiction is a disease undermines the deterrent and retributive purposes of punishment in these cases, leaving only incapacitation for rehabilitation.
Regardless, those confined before this paradigm shift have got nothing coming. Far too many of them present unsympathetic images due to their current convictions and dark skin complexions.
But make no mistake about it: If 10,000 soccer moms were languishing in prison for pulling capers to obtain prescription pain medication, lawyers would be battling to get them executive clemency or, alternatively, judicial relief based on arguments that these new socio-medical findings satisfy the legal standard for newly discovered evidence and warrant resentencing hearings to present mitigating factors in support of reducing their prison sentences.
That said, it remains a mystery how many years will pass before policymakers provide relief to those locked away in penitentiaries because their disease drove them to commit crimes to secure more—and more—prescription pain medication.
Until then, Corey Irish will continue serving out a sentence that exceeds the minimum term that is imposed on those who commit premeditated murder.
Jeremiah Bourgeois is a regular contributor to The Crime Report, and a recent graduate of Adams State University, where he earned an interdisciplinary degree in criminology and legal studies. Since 1992, he has been confined in Washington State for crimes that he committed at age fourteen. He is currently petitioning for release. Readers who wish to support him are invited to sign up here. He welcomes comments.
Most experts agree that in-prison training increases post-release employment opportunities. But unless we train inmates for today’s tech-heavy workplaces, they’ll be condemned to low-wage, unskilled jobs that provide no financial security, argue two justice advocates.
Getting a job is tough—especially for those just released from incarceration.
Many people lose their jobs while behind bars, and research demonstrates that felony convictions hurt an individual’s chances of finding employment — especially for job seekers who are black.
Even arrests for minor misdemeanor charges can negatively affect an employer’s decision to hire. This suggests that even if a person is found innocent or diverted from prosecution, negative financial repercussions may follow.
Some have touted work-release and training programs as an opportunity to increase individuals’ post-release employment opportunities, yet many of these programs have failed to truly embrace the lessons of the modern economy. The programs often send prisoners to work for companies that provide low-skilled, low-wage positions characterized by the kind of stagnant earning potential that makes it difficult for formerly incarcerated workers to ever achieve financial security.
Prison and jail programs can help address these problems by teaching incarcerated individuals how today’s technology makes it possible for them to build and thrive in their own careers once they are released. Partnerships with the free market may provide precisely such opportunities.
Building Prisoners’ Marketable Skills
For instance, jails and prisons could develop programs that use online platforms to give the incarcerated a chance to provide services on freelance projects. While inmate-produced goods are generally not allowed to be sold in the open market, these programs can instruct inmates on how to use technology to produce goods, and even how to start and manage a business, when they’re on the outside.
This will help inmates build marketable skills while serving time.
Local jails that traditionally lack programming and resources can still offer classes on entrepreneurship through seminars led by organizations such as Inmates to Entrepreneurs. They can also develop relationships with local business leaders seeking to volunteer.
Indeed, both pretrial detention centers and state prisons could offer similar programs, making time behind bars more productive for those who are incarcerated.
A current program in Texas is doing just that. More than 2,000 individuals have graduated from Texas’ Prison Entrepreneurship Program (PEP) and started over 350 businesses, contributing millions of dollars to the local economy. Every single graduate of Texas’ PEP is employed or self-employed within 90 days after release, and almost all remain employed a year later.
These are employment statistics few, if any, correctional programs can claim — indeed, they represent levels of post-graduate employment many colleges and universities wish they could attain.
The return on investment for the community is just as significant. In terms of public safety, on average, 7 percent of graduates recidivate within three years of release, compared to an average of 23 percent of incarcerated Texas males over a similar period. And a 2018 report estimates that the program generates a 794 percent return for each dollar invested within a five-year period.
Indeed, the authors found that PEP saved Texas and the federal government approximately $4.3 million in 2017 alone.
If providing individuals with a second chance to establish financial security, contribute to a thriving economy and promote public safety aren’t reasons enough to invest in these programs, ensuring that victims of crime obtain justice certainly must be.
Incarcerated individuals relegated to low-wage employment after release are often unable to satisfy all of their financial obligations. It’s hard enough to pay rent and grocery bills when making minimum wage; expenses like child support and restitution may simply fall by the wayside.
Investing in Entrepreneurship
Providing released individuals with a better path toward higher earning capacity is the best way to ensure they can fully satisfy such responsibilities.
For all these reasons, policymakers can help incarcerated individuals, families, communities and victims by investing in inmates’ professional capital during incarceration.
Entrepreneurship has catapulted newly arrived immigrants, single mothers and high school dropouts from uncertain financial futures to steady employment; it can do the same for those exiting our local jails and prisons. Accordingly, we should prioritize investments in programs that provide returning women and men with the right skillsets to take advantage of our technology-driven economy.
With a few changes to work and training programs in jails and prisons, we can help those who are incarcerated shed their criminal label for a much more productive and positive one: successful entrepreneur.
Emily Mooney (@emilymmooney) is a policy associate for the R Street Institute’s Criminal Justice team. Arthur Rizer (@arthurrizer) is the Director of Criminal Justice and Civil Liberties at the Institute.
Last October’s well-publicized bailout of 105 New Yorkers who were awaiting trial is now history. But a volunteer who participated says it underlines why changing America’s pretrial detention system should be a high priority.
It was called an irresponsible experiment or even lunacy, but the “mass bailout” organized last fall in New York City by the Robert F. Kennedy Center for Human Rights (RFKHR) can claim some success.
The month-long Mass Bail Out Movement (MBO) last October attracted widespread press attention, as well as 1,200 volunteers and about $2 million in funding support to underwrite early release for 64 adult women and 41 high-school-aged males from the city’s Rikers Island facility and other county jails.
About 1,200 volunteers participated in the Oct. 18 mass bailout event. Photos courtesy Revolve Impact.
There are no plans to do it again, in New York City at least, but the effort to awaken Americans to the need for rethinking pretrial detention, and more specifically bail, is only just beginning.
The event was “a single, time-limited, collaborative action,” said Sierra Ewert, a Program Director at RFKHR, adding it was intended to “call attention to the unjust and inhumane system of money bail, model alternatives to pre-trial incarceration, and increase the pressure to close Rikers and pass the structural reforms needed to end wealth-based detention and unjust pretrial incarceration.”
That may sound over-ambitious, but the organization plans to work with coalitions such as #FREEnewyork led by Just Leadership USA and the #CLOSErikers campaign, as well as share lessons learned with partners engaging in bail outs as a tactic.
Updated reports on those bailed out are still pending as their cases remain open.
But critics are wasting no time to judge the results of the MBO and downplay the significance of what actually happened. The New York Post called attention, for example, to the numbers of those bailed out who did not show up for their court dates.
These are the facts that observers tend to focus on. They are tangible, measurable, and a means through which the movement can be either praised or condemned.
But focusing on the individuals affected is the wrong way to look at what happened last year.
The target is the system itself—and the issue at the top of the agenda for all Americans is to reform how individuals awaiting trial are handled by our justice system—an effort which is now getting broad bipartisan support across the country.
I was one of the volunteers for MBO, and my experience underlines why this movement demands expansion.
I spent a morning at the Brooklyn House of Detention, a nondescript building in Brooklyn, N.Y., situated on Atlantic Avenue, one of the borough’s main streets. With its windows covered in black paint, the building sits across from a Michaels store, an outlet of a retail chain that sells yarn, beads and other accessories to hobbyists.
It makes for an ironic counterpoint, as if the first stop for those recently released will be to pick up yarn for their knitting project later that day.
I waited in the room where individuals wait for surety forms to be processed or for released inmates to receive their belongings. Uncomfortable and horribly lit, against one wall of the room there’s a wooden bench. Lining another one are three school-like plastic chairs, one of which has a black shoelace that has collected enough dust to suggest it had been there for some time.
The stride and demeanor of each person who walks into the room makes obvious which window is being visited.
The woman bailing someone out keeps her friend on speaker phone during the 45 minutes she waits for her bail to be processed. She clutches a white crinkled envelope, struggling to manage holding her phone, purse and Mountain Dew. A few hundred-dollar bills peek from inside the envelope. It seems like she’s done this before.
But few in the room are able to adopt the woman’s seemingly nonchalant attitude.
There’s a young man, for instance, who is growing increasingly frustrated as he waits. He has a job interview at 12:00 pm, and it’s already 11:00. He paces the small room as the woman behind the property pick-up window dispassionately tells him no, he cannot have his driver’s license back at this time.
The woman posting bail does not look up as he begins to raise his voice. She speaks louder into the phone so that her friend can hear her clearly. After some time he leaves with no ID and a cancelled job interview, exasperated and too frustrated to contest further.
A few minutes later she is called to slip her white envelope under the window and leaves too.
The room is quiet, apart from the sound of shuffled papers coming from the two women sitting behind their respective windows that stand less than six feet from each other. Sunlight streams through the window of the door and the warmth feels out of place.
A Symbol of Freedom and Imprisonment
This room is a symbol of freedom and imprisonment: a space where one can come to free their loved ones from the jail of poverty as well as the place where those same loved ones come to collect their belongings.
And long after the mass bailout movement has ended, the anomalous existence of this room keeps on.
New York City’s pretrial population averages about 7,500. Over half of this demographic is unable to afford bail.
The MBO was a reminder that poverty is criminalized in this country.
While the young man who was waiting for his papers may have received a temporary reprieve, he still missed his job interview—making his chances of escaping the poverty that was a factor in his brush with the law slim.
He missed what might have been his first and best chance at moving past his incarceration. And he missed it because, as the woman behind the window impatiently explained to him, he did not have the paperwork or parole officer’s permission to get his driver’s license back—as if a driver’s license is correlated to crime, as if the woman behind the window and the parole officer assigned to him had the right to withhold his identity.
Immediate freedom may be bought in this small room, but the residual consequences of being justice-involved remain bleak.
The MBO made clear that the status quo can be challenged. But it will take a lot more than one-time events to end the injustices visible in that room, and beyond that, to end a system of money bail and pretrial detention that harms everyone it touches.
Olivia Heffernan is a graduate student at Columbia’s School of International and Public Affairs (SIPA), where she studies human rights law and journalism. She also works part time at the Marshall Project and the Columbia Justice Lab. Visit her website at: livheffernan.com.
As a debate about the number of wrongful convictions, sparked by Prof. Paul Cassell of Utah, quietly percolates among U.S. scholars, a TCR columnist suggests the argument misses the point entirely: the numbers are less important than making sure they don’t happen.
A bundle of law review reprints arrived in my office recently, sent by Prof. Paul Cassell of the University of Utah’s law school: three articles, a total of 158 pages and 731 footnotes.
Prof. Paul Cassell via Wikipedia
With his articles, he has launched another sally in the long-running scholarly war over the rate of wrongful convictions in American criminal justice. His new calculation places the rate in a range of 0.016 percent to 0.063 percent.
Cassell’s calculations may or may not be accurate. The question is whether they are meaningful, that is, whether they contribute to preventing the next mistake. Our concern is not with compiling past wrongful convictions (or acquittals) in the aggregate; it is with avoiding them individually.
Editor’s Note: Prof. Cassell is a former Associate Deputy Attorney General, and a former U.S. District Judge in Utah who is considered a leading advocate of victims’ rights.
We can expect his opponents to reply promptly. (One study had estimated that the rate could be as high as 11.6 percent in certain rape cases; others have generally fallen between that number and Cassell’s.)
Cassell’s point seems to be that while wrongful convictions remain important as a matter of principle, they should be considered as “error costs”—the product of the likelihood that an error will occur and the price of the error if it does occur—and they therefore are not an urgent issue among the many other challenges of our justice system.
They are unlikely to the point of freakishness, and the cost of the errors that do occur can often be discounted because of the “moral blameworthiness” of many of the people wrongfully convicted, he appears to be arguing.
(Cassell sees “wrongful acquittals” in a different light: those are both frequent and costly, and our neglect of them is one expensive downside of our neurotic preoccupation with exonerations.)
I won’t join Cassell’s academic colleagues in disputing his arithmetic. I have neither the expertise nor the energy to join that battle.
But the practitioner’s life I’ve led does provide a perspective on the debate that might be worth recording, if only because it is so different from the combatants’ own.
Cassell’s numbers would seem to indicate that a mistaken conviction must be nearly impossible to contrive, and that avoiding a wrongful conviction is really rather an easy thing to do.
That’s not the way it feels to a frontline cop, prosecutor, or defender.
No one with two weeks’ experience in our shambolic urban courts will be very reassured by the claim that there is a 99.98 percent chance that their case is going to turn out OK.
I can’t help thinking of a client of mine named (let’s say) Bob Flinch. Flinch held up a liquor store, shot the owner, and then, on his way out, somehow managed to shoot himself in both feet. Collapsing under a stoop 30 yards down the street, he still had the weapon with him when he was arrested five minutes later and helpfully recounted events for the police.
Flinch was very diligent about staying in touch with me pretrial via telephone from the D.C. jail. (He opened every call with “How does it look?”) I did what I could, but Flinch was convicted.
Any system, operated by anyone, would convict Mr. Flinch. It is a little disconcerting to realize that when Cassell determines what fraction of prosecutions result in wrongful convictions, Mr. Flinch’s case finds its way into his denominator.
Cassell’s numerator—the number of officially recognized exonerations—makes fair-enough use of the numbers, but it uses the numbers we have rather than the numbers we need.
The fraction most of us are interested in when we assess the system’s functioning is the number of mistaken convictions (some revealed and many undetected) over the number of cases that might (unlike Flinch’s) have been subject to some doubt.
The academic antagonists are oriented to the ancient ideological tug-of-war between adherents of Herbert Packer’s Crime Control and Due Process Models: a zero sum contest between the suspect and the state. One camp wants more official control of the population; the other wants more control of the officials. Both seek control as their goal, or as at least the indispensable precondition for other goals.
Frontline lifers (at least lately) have become less interested in control and more interested in the collaborative co-production of Safety. They have been forced to recognize that control is often illusory, always evanescent.
And so, practitioners value the lessons taught by the study of safety in aviation, medicine, and other high risk industries.
Frontline people will tend to see wrongful convictions not as single cause (say, eyewitness error events), but as complex “organizational accidents” in which many small errors and omissions, none of them independently sufficient to cause the disaster, combine with each other and with latent system weaknesses.
The practitioners know that many things have to go wrong before an innocent man is convicted, and they also know that many things would have to go right (e.g., he finds a lawyer, has the right sort of evidence, etc.) before a wrongly convicted man is exonerated.
Safety specialists teach us that there are many more errors than there are completed wrongful convictions, and many more wrongful convictions than there are exonerations.
A wrongful conviction isn’t “caused” by a Brady violation. The police had to get the wrong guy. The DA’s office had to hire the wrong assistant, goad him with the wrong incentives, and fail to train and supervise him. The defenders had to fail to develop the buried exculpatory material on their own.
A wrongful acquittal isn’t “caused” by the exclusionary rule. First, training on and observance of Fourth Amendment search and seizure requirements have to fall short, and the development of alternative sources of evidence has to be frustrated for the exclusionary rule to free a guilty man.
As John Jay College of Criminal Justice Professor Jon Shane has shown, even an apparently simple violation of constitutional procedure is a complex organizational accident.
Besides, one of the most basic maxims of the safety experts is that the absence of accidents is not proof of safety. The fact that we launched Space Shuttles with the same O-ring design successfully many times before the Challenger mission didn’t mean that it was safe to launch Challenger.
As Charles Perrow, one of the pioneers of the modern safety movement, put it, Murphy’s Law is wrong: everything that could go wrong usually doesn’t, and then we draw the mistaken conclusion that things are safe.
Counting outcomes and moving the needle towards “more” or “fewer” is absorbing for the professors, but it is not terrifically interesting for frontline actors, who are concerned with their own workmanship in the cases they confront, not with broad ideological “fixes.”
Whatever the fix, the cases will keep coming.
Criminal Justice and Human Error
Practitioners are bombarded with daily reminders that criminal justice, like all human endeavors, is subject to error.
The rate of fatal errors in medicine may be as high as the Academy of Medicine’s estimate of 44,000 to 98,000 annually, or it may be more accurately estimated at a lower rate, but no one argues against working at continuing quality improvement in patient safety.
What Cassell’s latest piece will show practitioners (if they happen to read it) is that neither Cassell and his allies, nor their opponents, will ever succeed in landing the knock-out punch each side seems to crave. The statistical raw materials are too fluid to provide the foundation for a clinching proof.
But if the scholarly antagonists can reconcile themselves to that conclusion there are learning opportunities for them here.
For example, although deriving an exact authoritative rate of wrongful convictions may be impossible, we do know something about their distribution—especially their racial distribution—and that may repay further study.
Prof. Jon Gould and his colleagues have shown that careful social science inquiry can teach us about the conditions that lead to wrongful convictions by contrasting those conditions with others influencing “near miss” outcomes in which mistakes are intercepted before the conviction occurs.
Significantly, Gould and his co-authors directly enlisted frontline practitioners to collaborate in developing “strength-of-case” measures.
Further openings for scholarly (and law school clinical program) collaboration with the frontline actors are provided by efforts such as the National Institute of Justice / Bureau of Justice Assistance exploration of all-stakeholders, non-blaming, forward-looking “Sentinel Event Learning Reviews” that probe the sources of wrongful convictions (and, for that matter, wrongful acquittals) with avoiding repetition as their focus.
This is a team effort worth undertaking. After criminal justice mistakes, the system has to hold itself accountable for learning everything it can from the event.
The Harms of Wrongful Convictions
Wrongful convictions are “iatrogenic injuries.” Like a scar after surgery, they are inflicted by useful treatment. The harms they produce radiate outward in concentric circles: to the exonerated, the original victims, and to the future victims whom the actual perpetrator will find while the wrongfully convicted man serves the real criminal’s time.
Those harms should be weighed before we act as well as deplored later on.
Cassell does list many of these harms. But there is one harm that recedes into the background in his accounting; one for which the difference between 1 percent and 5 percent may not ultimately be very important.
John Adams described that harm, arguing in defense of the British officers in the Boston Massacre trial.
Guilt and crimes are so frequent in the world, that all of them cannot be punished . . .But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject there would be an end to all security what so ever.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
As the first anniversary of the Parkland, Fl.,school massacre nears, two researchers offer some suggestions for how media coverage of mass shooting can avoid the “copycat” phenomenon.
On Feb. 14, the nation will mark the first anniversary of the high school shooting in Parkland, Fl., that claimed the precious lives of 17 students and teachers. In the year following that massacre, there were at least 53 additional incidents of gunfire on high school and college campuses around the country.
As Americans learned the names and saw the faces of these killers and victims, fear and outrage grew.
The 24-hour news coverage of the Parkland massacre was typical, and seemingly based on the assumptions of reporters and TV news producers that consumers are drawn to stories of mass murder because of morbid curiosity. Thus, much of the Parkland coverage focused on the killer’s background and apparent motivation, as well as the plight of his victims.
The grisly scenes of mass carnage, the videos of students running for their lives from the school building, and the tearful responses of the victims’ families and friends undoubtedly aroused collective empathy among news consumers around the country.
Many audience members surely identified with the innocent victims and their families, and also looked to news reports for “red flags” that might prevent future attacks. The problem, though, is that excessive attention to a mass murderer and his victims also fuels the dreaded copycat phenomenon.
In addition to those who sympathize with the victims, unfortunately there are at least a few in the audience who identify with the killer. In these cases, they sadistically enjoy viewing the grisly consequences of a school shooting while studying the details, perhaps in hopes of replicating (or even outdoing) that violence elsewhere in the future.
In this way, news reports about a mass murder may serve as a training session for potential killers who use the tragic circumstances of a school massacre as inspiration.
For nearly 20 years, school shooters in countries around the world have referred to the April 20, 1999 slaughter at Columbine High School as their model for gaining fame and enacting revenge. Some killers, particularly those who do not expect to survive their planned attack, leave behind letters, manifestos, photographs and videos that explain their rationale, often in hopes of media outlets around the world publishing their material.
*The killers who intend to survive may envision their name in the headlines, their image on TV, or perhaps even a documentary about their life. Some killers just want to be recognized and remembered — to live on in infamy — and often that’s exactly what we give them.
As part of efforts to combat these dangerous messages in U.S. news stories and to lessen the inspiration for would-be murderers seeking fame, several crime scholars have applied increasing pressure on news media outlets to change the ways they cover incidents of mass murder.
Stop Publishing Killer’s Name?
Criminologists Adam Lankford and Eric Madfis proposed that news organizations stop publishing the names and photographs of these killers, and the “No Notoriety” campaign adds to that list killers’ self-created content like videos, artwork, and manifestos. The idea is to eliminate the potential for recognition or fame that motivates many of these killers.
It seems that some journalists are heeding the call, as the killer’s name was sparingly used in reports about the Parkland school massacre.
Moreover, CNN’s Anderson Cooper has indicated he will avoid the names and identifying characteristics in future coverage of high-profile mass shootings.
An alternative avenue for news outlets is to focus more coverage on the heroic responders who are involved in mass murder incidents, such as students, faculty, staff members and security personnel who demonstrate bravery in dire circumstances.
It appears that there were more than a few heroes at the Parkland school when the shooting began, including the janitor who ushered numerous students out of the hallway, the 15-year-old student who died holding the door open so that others could escape, the football coach who lost his life after stepping in front of the killer’s bullets to protect students, and the geography teacher who shielded his students from gunfire.
Crime has long been one of the most widely followed news topics, so news outlets may hesitate to change their coverage because of concerns about declining sales. Yet public interest in crime news does not necessarily mean that consumers are getting what they want from that coverage.
In fact, we recently published an experiment that was designed to examine the source of consumer interest in news about extreme acts of fatal violence, and the findings produced some potentially important, if counterintuitive, results.
We first developed three versions of a hypothetical news story about a massacre at a high school, including photographs (one of a teenage boy and one of a school building with students filing out), headlines, a pull quote, and a paragraph of the story. All versions included identical elements and differed only by the story focus: One centered on the life of the killer, one on the killer’s first victim, and one on a courageous student who helped to save lives.
The versions were randomly assigned to more than 200 respondents so that one-third read about the mass killer, one-third read about the victim, and one-third read about the heroic student. All respondents were then asked whether they wanted to read more of the news story.
Our findings revealed that respondents were significantly more interested in reading about the heroic efforts of a student who saved lives, compared to stories about the killer or one of his victims.
Our study suggests that sensational reporting that contains grisly details of a heinous crime may actually repel consumers who are more interested in learning about heroic behavior at the crime scene.
Moreover, focusing on heroism at the site of a horrific school shooting may offer an additional advantage for society: If the copycat effect works to inspire potential killers, it might also work to motivate rescuers who risk their lives to save others.
Levin is professor emeritus and co-director of the Brudnick Center on Violence at Northeastern University. Wiest is an associate professor of sociology at West Chester University of Pennsylvania. They are co-authors of The Allure of Premeditated Murder, published in 2018. Readers’ comments are welcome.
As initiatives like the REFORM Alliance surge forward, it is important that they take an elemental, rather than incremental, approach to reforming probation and parole. Activists should ask how much, if at all, we need to employ government workers to watch those who have broken the law, writes a former New York probation commissioner.
A man nine years out of a New York prison proposes marriage to his girlfriend who also has a criminal record. Because it is against the rules to associate with someone with a prior record, his parole is revoked and he is returned to prison for a year─after which he marries the same person, this time with his parole officer’s permission.
A Texas woman is sentenced to five years in prison for attempting to vote while on felony probation. She cast a provisional ballot that was not counted and claims that she did not know she was prohibited from voting while under supervision.
More than 10 years after he had been sentenced to probation as a teenager, an award-winning Philadelphia hip-hop artist is imprisoned for two to four years for a technical violation for a traffic infraction and breaking up an altercation in an airport. Both charges against him were ultimately dismissed.
The above three cases represent the broad range of behavior─some of it barely illegal, some illegal only for those under supervision, some not illegal at all─for which a person under probation or parole can be deprived of their liberty.
Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.
There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states. About four in ten people entering America’s prisons and jails each year are under supervision. Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.
Community corrections has been slowly gaining attention commensurate with its size and contribution to prison growth.
From 2013 to 2016, the Harvard Kennedy School convened 28 community corrections officials, researchers, prosecutors, advocates and formerly incarcerated people into an Executive Session on Community Corrections. The executive session published papers and convened public forums arguing for sweeping reforms, including shrinking the number of people under supervision and reducing revocations to prison.
In August 2017, every major association representing community corrections endorsed a Statement on the Future of Community Corrections, along with 35 prominent probation and parole administrators and 45 leading prosecutors. The statement asserted that, “community corrections has become a significant contributor to mass incarceration,” recommending that “that the number of people on probation and parole supervision in America be significantly reduced.”
A few months later, Meek Mill, the Philadelphia hip-hop artist profiled above, was returned to prison for a technical probation violation, spurring a national outcry and bringing the issue of community corrections to the attention of a broader audience. A nationwide effort to #FreeMeek sprung up and #Cut50, a bipartisan effort co-founded by Van Jones to reduce mass incarceration, launched a #StillNotFree Campaign to extend the conversation beyond Mill’s case.
The Columbia Justice Lab began publishing a series of papers on the impact of probation and parole nationally and in selected states coinciding with this explosion of interest in probation and parole reform. Too Big to Succeed – a national look at probation and parole authored by 20 leading community corrections administrators was followed by reports focusing on New York, Pennsylvania and Wisconsin, the latter of which we release collaboratively with JustLeadershipUSA.
Columbia’s New York report inspired the Less is More Act filed in January 2019 by Assemblymember Walter Mosley and Senator Brian Benjamin aimed at reducing the number of people violated on parole in New York State. New York returns the second highest number of people to prison for non-criminal, technical violations and people incarcerated for state parole violations are the only population that is increasing on Rikers Island.
This brings us to Wednesday’s launch of the REFORM Alliance, an organization inspired by Mill’s case, committed to advancing criminal justice reform.
Van Jones of #Cut50 (and a CNN host) has been tapped to lead the initiative, whose board is co-chaired by Mill and Philadelphia 76ers co-owner Michael Rubin, and includes musician-entrepreneur Shawn “Jay-Z” Carter, New England Patriots owner Robert Kraft and other titans of business, entertainment and sports.
As these various initiatives surge forward, it is important that they take an elemental, rather than incremental, approach to reforming probation and parole.
Probation and parole were established in the 1800s in America with the ambitious goal of helping people who had run afoul of the law turn their lives around. As mass incarceration exploded over the last four decades, community supervision mimicked it, even rebranding itself as “community corrections” in an attempt to stay apace with its big brother, the prison.
It partially succeeded, growing almost four-fold since 1980, but receiving only one out of ten corrections dollars.
To be sure, efforts to shrink supervision and make it less punitive are worthwhile. However, if the goal is to support people so they can flourish in their home communities, there needs to be a deeper examination of the best approaches to doing so.
New York City offers one example of how much probation can shrink substantially without producing undesirable consequences. From 1996 to 2017, the number of people on probation in New York City declined by three-quarters and technical violations plummeted to three percent. In 2014, 26 percent of people arrested for felonies in New York received unsupervised conditional or unconditional discharges while only four percent were sentenced to probation.
Did crime rise because of this massive reduction in community supervision in New York City? Did the jail population explode as probation, sometimes viewed as an alternative to incarceration, receded?
Quite the opposite, there was a 57 percent decrease in violent crime and a 55 percent decline in jail usage in New York City during that time.
And although the probation department’s budget rightly dropped, its per person expenditures doubled because of the sharp decline in its population, allowing me, as department head, to increase our contracts for community programs from two to 54 during my tenure there.
Former New York State Parole Director and New York City Probation Commissioner Martin Horn has proposed abolishing parole supervision and channeling the savings from reduced revocations to provide vouchers for persons on parole to buy their own services and supports.
Horn believes that parole is not particularly good at rehabilitating people on its caseload because parole is about taking risks and government is risk-averse. He reasons that individuals convicted of a new crime during the time they would have been on parole should be given moderate additional punishment, but should not be violated for non-criminal acts.
Give Returning Citizens More Responsibility
By putting programmatic decision-making into the hands of returning citizens, Horn also believes services will flow into the neighborhoods they live in.
Horn’s watershed proposal, and the experience of New York City, force us to ask basic questions about the proper role of government in helping people reacclimate to their communities.
High caseloads, scarce resources and a “trail ‘em, nail ‘em, and jail ‘em” attitude that replaced the Progressive-era’s rehabilitative ethic has rendered community supervision too big, overwhelmed and punitive to succeed.
There is not much evidence that revoking and imprisoning people contributes to public safety or rehabilitation, but we know it has a devastating and disproportionate toll on poor, young men of color. In contrast, recent research by Patrick Sharkey has found that increasing community programs helps improve community safety.
Instead of marginal fixes to the largest part of America’s system of punishment and control, this new wave of activism should ask how much, if at all, we need to employ government workers to watch those who have broken the law, versus how much we should be bolstering communities to help their neighbors turn their lives around.
Vincent Schiraldi is co-director of the Columbia University Justice Lab and Senior Research Scientist at the Columbia School of Social Work. He was formerly Commissioner of New York City Probation.
When then-Attorney General Jeff Sessions shut down the Justice Department’s efforts to end bias in U.S. police departments, many police reformers lapsed into despair. But reform is alive and well across the country, if you look in the right places, says a policing scholar.
The program involved investigations of violations of peoples’ rights by local police departments and then negotiating consent decrees mandating reform.
The 40 consent decrees and settlements that were initiated under the program since 1994 made notable improvements in previously troubled police departments.
Many experts wondered who would now take the lead nationally in police reforms.
The mood of pessimism was reinforced by the continuing incidents of outrageous police shootings of people, who were disproportionally African American. Had the reforms spurred by the tragic 2014 events in Ferguson, Missouri, accomplished nothing?
Despair not. Police reform is alive and well across the country. You just have to look in the right places. The argument here is developed at length in an Illinois Law Review article.
First, since Ferguson there has been an outburst of police reform ordinances and laws across the country. A Vera Institute report found 79 separate state laws in 35 states in 2015-2016 alone.
Five states passed new laws either limiting certain types of force (e.g., chokeholds) or mandating training for all offices. Several others enacted laws to prevent racial profiling in stops of citizens. Nine states passed laws to improve police handling of mental health-related incidents. An astonishing 27 states enacted laws related to police body-worn cameras
Nine states, meanwhile, passed laws requiring police departments to collect data on officer-involved shootings, traffic stops, and other critical police actions. A Texas law now requires each police department to post detailed information of police shooting deaths on their web sites (see Houston).
City councils have also been very active. Seattle, Chicago, and New York City have created Inspectors General, independent oversight agencies with professional staff that investigate issues of concern in their local police departments. Seattle, meanwhile, created a permanent Community Police Commission, which can recommend new or revised police department policies.
A group of reform-minded police chiefs, meanwhile, has made important recommendations related to the control of officer use of force, de-escalation and tactical decision-making, and more effective methods of training. Their group, the Police Executive Research Forum (PERF) has published a series of pathbreaking reports in the last several years.
A 2015 PERF report on training blasted the profession for its over-emphasis on force and control issues, while devoting little to officer communication skills. A 2016 PERF report on use of force urged use of force policies that are actually more restrictive than what the Supreme Court requires.
The PERF reports are based on the current work of police departments. Each one is based on a meeting of police chiefs and commanders who report on what they are now doing in their own departments. In short, they provide a window into the law enforcement profession in the process of change.
In short, the evidence is clear: police accountability-related police reform is alive and well. Stat legislatures, city councils, and many police chiefs across the country are active in controlling police use of force, making departments more open and transparent, and providing for community input into police policies.
Sam Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. He welcomes comments by readers.
The nation’s most populous state has been a trailblazer in justice reform, but it lags behind others in its failure to abolish capital punishment. Gavin Newsom, sworn in this month as the new governor, could change that, writes a reform advocate.
The move tops Brown’s already record-breaking number of pardons and commutations and other policy changes he championed, all of which were aimed at rethinking a justice system that Americans widely agree needs an overhaul.
Indeed, there is a growing recognition across the country that mass incarceration and racial inequity in the justice system are among the most urgent issues of our time. Brown should be applauded for the steps he took to address these issues.
But the governor missed a critical piece by leaving the death penalty off his Christmas list.
In doing so, he sent a clear signal that California lags behind the national trend to end capital punishment. Now it’s up to his successor, Gov. Gavin Newsom, to finish the job.
Brown’s inaction is confusing because the death penalty is already on its last legs across the country. Eleven states have either ended or suspended the death penalty in the last 11 years. The most recent, Washington State, came just months ago when its highest court ruled that racial bias was so ingrained in the process as to make it unconstitutional.
States from New Hampshire to Louisiana to Utah have taken significant strides, and 2019 is shaping up to be another big year for states seeking to end this antiquated practice.
On the other hand, California has the largest death row in the nation—nearly 740 people, more than three times the size of Texas’ death row. California’s death row ballooned in much the same way that its prisons did, during an era when the death penalty was on the rise.
Many of the people awaiting execution would likely not be sentenced to death today, yet they have languished on death row for decades. Many were young people at the time of their crimes and are now aging, but desperate for any opportunity at rehabilitation. The death penalty offers nothing of the kind.
Instead it represents the lack of hope or opportunity for rehabilitation that Brown celebrated in granting his commutations last month.
Like Gov. Brown, I have met or heard from many people who have committed violence and later turned their lives around. What has become clear to me again and again is that most people don’t commit violence unless they’ve been exposed to it before – as victims, as witnesses, and so often as children. California’s death row is rife with such people.
The Death Penalty Information Center just published its 2018 report and found that 72 percent of those executed this year suffered a dramatic impairment – significant evidence of a mental illness; some element of brain damage or disability; or chronic, serious childhood trauma.
Those on death row are often poor or people of color and have faced the most daunting challenges. We marshal all of society’s resources to kill them after they harmed someone else, but what if we had dedicated just a fraction of the effort to prevent the violence in the first place?
Trauma, Chronic Poverty and Racism
Trauma begets trauma, and communities plagued by chronic poverty, racism, police violence, and mass incarceration experience that trauma at the highest levels. The communities most harmed by violence are very often the same that get swept into the criminal justice system. One of the cruelest aspects of executions – and the way we respond to violence overall – is how we betray our most vulnerable people.
We have all the tools we need to address their trauma and start breaking the cycle of violence and retribution that has become our nation’s shameful legacy.
Gov. Brown took powerful strides to right those wrongs throughout his two most recent terms.
Shari Silberstein is executive director of Equal Justice USA, a national leader in the movement to transform the justice system from one that harms to one that heals. She welcomes comments from readers.