The Justice Dilemma: When the Cure is Worse Than the Disease

We’re now paying the price for simplistic assumptions that establishing “control” is a requisite for tackling the roots of criminal behavior. Could sensible, evidence-based approaches help make communities safer?

Harm to a patient caused by treatment rather than disease is called “iatrogenic”—coming from the healer.

Some iatrogenic harm is caused by medical error—surgery on the wrong patient or at the wrong site on the right patient.   Other iatrogenic harm—some fatal drug interactions— might have been impossible to anticipate.

Predictable consequences of treatment—a scar after necessary surgery—could be called iatrogenic too.  Some iatrogenic injuries, such as a toxic needle-stick to a nurse, hurt the staff—not the patient.

No decision process in health care is considered complete before it resolves the question of whether the benefit of treating a particular threat with a particular therapy is ultimately outweighed by the “countervailing risk” that the proposed method of attacking the “targeted risk” might create.

Treatment carries its own risks.  Is this cure worse than the disease?  You can’t let the risks paralyze you, but you have to balance them.

We don’t remember to do that in criminal justice, and now we are paying the price.

Mandatory minimum sentences produce startling iatrogenic levels of mass incarceration among young African-American men in the neighborhoods.  Pretext “zero tolerance” and “broken windows” arrests, pretrial detentions and prosecutions generate immediate unemployment and debt.

Ad they build iatrogenic “permanent CV’s” that put jobs out of reach.

Two new books, one by MSNBC commentator Chris Hayes, and the other by Yale Law School Professor James Forman, accept that violent crime is a serious disease afflicting the African-American inner city and agree that the disease must be treated.  Both authors remember to weigh the harms our treatment choices have risked.  The books illuminate each other.

 Chris Hayes’ title, “A Colony in a Nation,” places him squarely within a conventional approach  I have been ranting about in taverns and law reviews for 25 years.   His book reflects the capture of contemporary American thinking about urban criminal justice by the mental world of the colonial officials who governed the Third World for the old European empires.

Hayes is not a Kipling, glorifying the empire’s White Men while they beat “natives” with rifle butts. He’s the honorable heir to the old empires’ insider critics:  skeptical writers like George Orwell in Burma, T.E. Lawrence in the Middle East, or Joseph Conrad in Southeast Asia, Latin America, and Africa.

He is alert to the havoc that well-intentioned criminal justice operators have wrought and sympathetic to the inner city’s residents.

Still, Hayes remains a travel/adventure writer, crossing an invisible frontier into the Colony (his term for the inner city) and returning to bring us the news.  His heart is with the residents; but in the end, he cannot escape reinforcing the Manichean vision of two radically different worlds that has helped to get us where we are.

Ultimately, the problem is Them and There.

Why is it that ordinary white Americans never go to the African-American inner city?  Because, thanks in part to well-meaning commentators like Hayes, they are very certain of what they would find if they did go:  a desolate arena of full-time predators and their full-time prey. The place seems distant; the people mysteriously different.  Why do they live this way?  How?

This fixation on imaginary distance and difference breeds policy.

The “colonial” imperative at work in the inner city, as it was in the Third World, is control.  Yes, other things—in education, in health care—might follow. But without control there is nothing.

The mainstream histories of our urban crime wars in books like Hayes’ provide narratives of law enforcement efforts to gain control.  Strategies are devised and executed; they succeed or fail; they are resisted or accepted. Mandatory minimums, broken windows policing, “hot-spot” targeting, are introduced, tried and analyzed.  Control ebbs and flows.  Is the crime rate up or down?

While Hayes stands in the shoes of Orwell and Conrad, James Forman fills the role of post-colonial writers like C.L.R. James, or Edward Said.  Foreman shows us Hayes’ “Colony” as it is looks from within.

Forman’s focus in “Locking Up Our Own is the reaction to the threats of drugs and violent crime of the inner city’s residents (and particularly its leaders).

Like very few writers about contemporary criminal justice (the New Yorker’s Jennifer Gonnerman is another) Forman, who worked for six years as a public defender in Washington, D.C., renounces the charms of the exotic.

In Forman’s account, there’s no vivid journey to a Heart of Darkness.  Like Hayes, he sends news, but Forman sends news from home, not from a torrid-zone dystopia.  His inner city is right out your window.  Its residents have more in common with white suburban Americans than either group has in common with anyone else.

“Locking Up Our Own” makes it clear that mandatory minimums, aggressive anti-gun dragnets, and rampant pretrial detention (to lock “the revolving door”)—all of the initiatives that we now see as causes of enormous iatrogenic harm—were at one time supported by African-American leaders in government, media, and the churches.

But the key point that emerges from Forman’s book—key not just for our past, but for our futures—is that while the local leaders supported similar policies and practices (for example, aggressive gun sweeps), they did so with a fundamentally different orientation.

It is clear (to me, anyway) from “Locking Up Our Own” that the local leaders’ imperative was not control, or even resisting control; it was safety.

That perspective mobilizes a long list of productive insights from writers who take safety—in medicine, in aviation, and a range of other dangerous fields—as their subject.

Safety experts would tell us, for example, that the decisions that in hindsight look perverse—for example, supporting mandatory minimums—were almost always “locally rational”: they seemed to solve an immediate problem.  Community leaders wanted more than mandatory minimums; they wanted treatment programs, jobs, and education.

But mandatory minimums were the safety tool they could get, so it seemed to make temporary, local sense to support them. They were reacting to an environment.

The safety experts would also argue that dangerous situations are seldom arrived at by one giant leap.

The mandatory minimum sentences that seemed to African-American political and church leaders to offer surgical drone strikes on selected drug kingpins eventually turned into the carpet bombing of generations of young African-American men, but we didn’t get there all at once.

The threat to safety isn’t the legislation itself  (after all prosecutors didn’t have to seek mandatories); it is drift toward the promiscuous use of the legislation in practice that creates the harm—just as the promiscuous over-prescription of antibiotics, not the antibiotics themselves,  leads to resistant organisms.

One case at a time, mandatory minimums were handed out in less and less serious cases, to less and less culpable defendants:  each successive case constituting the new normal—the new “going rate”—that was, in turn, departed from the next day.

Police stop and frisk to find guns and take them off the street.  Whether this treatment strategy and its low “hit rate” will traumatize innocent community residents and breed distrust of the law is above the cops’ grade in pay.  They deal with things one transaction at a time. The Compstat numbers have to be ready at the end of the month: you need them to prove that you’re working out there.

The docket list has to be cleared by the close of business every day; so the Assistant DA’s wheel out the mandatory minimums and try to leverage a plea.  That’s “locally rational” too.   Does the prison population aggregate to a gigantic and racially imbalanced horde?  That iatrogenic harm is not any frontline practitioners’ job to balance.

Both Hayes and Forman end their books with a story.

Hayes recounts sitting in Prospect Park, in Brooklyn, NY, watching a group of black teenagers horse around on their bikes.  It reminds him of his own “youthful hijinks.”  But then, the kids snatch a white pedestrian’s cellphone, and ride off. Hayes struggles with the meaning of the event.

It is an event Rudy Giuliani would be glad to explain to him.  Rudy would say Hayes witnessed a Central Park Five “wilding” in embryo—a failure of control in the Colony’s border zone, to be treated by incarceration. Iatrogenic consequences are beside the point.

Forman’s concluding tale is very different.  He describes defending a juvenile named Dante, caught dead to rights robbing an African-American construction worker and facing years of miserable juvenile detention.  Forman goes to see the victim, a hard-working (and probably illiterate) man facing many challenges of his own, and asks him to agree to Forman’s proposed alternative to incarceration:  probation together with an innovative carpentry program—an effort to protect Dante’s potential.

The victim agonizes, “I don’t know if I can forgive this young man, but I will try.”   In the end he agrees to stand up for Forman’s recommendation in court.  The judge imposes probation.  Years later, Forman meets Dante on the street.  He has never been rearrested; he is working at a construction job; he has a son of his own.

In safety terms, this is a “near miss,” or a “good catch.” Here’s a life that was almost thrown away, then wasn’t.

But safety thinking requires a disciplined look at where that “good catch” came from.  That’s what a “culture of safety” does to learn from its experience.  This “good catch” required, for example, a carpentry program to send Dante to, and a well-funded public defender with a reasonable caseload, and therefore the time to find the program and visit the victim.

Most importantly, it required doing criminal justice with the community not “for” it (or, when the iatrogenic consequences are considered, “to” it.)

Forman’s book is an enormous contribution because it underlines the potential for a pivot from control to safety in inner city criminal justice.

James Doyle

It tells us that an all-stakeholders collaboration in dealing with criminal justice problems is not a wild dream; it is a new use of an existing will to make everyone safe—young men, cops, and communities—and safe from everything: from crime itself, and also from unnecessary iatrogenic harms inflicted by the struggle to combat crime.

We should have known that all along.  Now, thanks to Forman’s meticulous scholarship, we know it for sure.

An obsession with control has brought us neither control nor safety.  A focus on safety might bring us both.  We got into this together.

Together is the only way we are getting out.

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