American Incarceration

Demos

Mass incarceration In America With American adults imprisoned at staggeringly high rates, we can no longer justify the cost or defer the moral and social consequences of our flawed system. special report contents Eyes on the Prize

by rebecca Ruiz A3

Smarter Punishment, Less Crime

by Mark A.R. Kleiman A4

On the Block

by Chris Smith A6

Closed Circuit

by Monica Potts A9

Indefensible

by Vanessa Gregory A11

May It Please the Court

by Sasha Abramsky A14

Permanent Lockdown

by Adam Serwer A16

Education Vs. Incarceration

by steven hawkins A18

The New Jim Crow

by michelle alexander A19

Bipartisan Justice

by Kara Gotsch A22 illustration by brian stauffer

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Eyes on the Prize Our moral and ethical duty to end mass incarceration

By Rebecca Ruiz

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this special report appears in the January/February 2011 issue of The American Prospect magazine and was made possible through the generous support of The Annie E. Casey Foundation. special reports editor Robert Kuttner

criminal-justice report editor and special reports director Rebecca Ruiz

report bulk reprints specialreports@prospect.org

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subscription rate $24.95 copyright © 2011 by the american prospect, inc.

oday, nearly 1 percent of the American adult population is imprisoned—a rate unprecedented in this country’s history. A staggering $68 billion is spent annually on the country’s local, state, and federal corrections systems. This “investment” in public safety has fundamentally transformed American society, removing a disproportionate number of nonviolent minority offenders from their communities while diverting much-needed taxpayer money from critical social programs. Most of these offenders will be released only to return to prison because of anemic re-entry efforts and policies.

In recent years, these and other grim statistics, as well as enorU.S. Population Growth mous state and federal budget deficits, have persuaded even the Prison versus general population staunchest advocates of incarceration to reconsider how America 400% handles crime and punishment. We can no longer justify the cost 375% prison of mass incarceration or defer its moral and social consequences.

300% Ending mass incarceration and reducing crime rates are not mutually exclusive goals. The crime rate has consistently dropped since the 200% 1990s, but the prison population has only increased. Between 1972 and 2008, the state inmate population grew 708 percent. As Mark 100% Kleiman argues in this report, protecting the public and shutting 34% general down the prison pipeline are twin objectives that can be accomplished 0 1980 2008 by using smarter crime-control strategies.

One technique for successfully dealing with habitual offenders is source: bureau of justice statistics; u.s. census the carefully designed, comprehensive intervention aimed at altering behavior. As Chris Smith reports from Oakland, California, targeting recidivist individuals with a combination of social-services support and the credible risk of arrest can improve motivation and help the willing avoid lawlessness and prison time. Sasha Abramsky, reporting from just across the Bay in San Francisco, shows how repeat offenders also find reprieve from the revolving door of prison or jail in problem-solving courts, where professionals work to address the root causes of criminal behavior before incarcerating these offenders yet again.

Of course, these small-scale efforts are minor remedies to fix fundamental flaws in the criminal­justice system. As Vanessa Gregory and Monica Potts write, respectively, the poor and young encounter a legal system that is rarely transparent and often produces tragic outcomes for those who lack the resources to mount a just defense or the ability to expose abuse and corruption. And those who do serve time, as Adam Serwer argues, face an arduous challenge to rejoin society.

Steven Hawkins reminds us that reforming high-crime neighborhoods requires a commitment to public investment in education.

Perhaps, however, no greater disparity exists in criminal justice than race. Black men are imprisoned at a rate six times that of white men. Michelle Alexander makes the case that our criminal-justice system associates criminality with race and then legalizes discrimination against ex-offenders in ways reminiscent of the Jim Crow era.

Putting an end to mass incarceration is a daunting mission, but it is not impossible. Kara Gotsch calls on our elected leaders to prize bipartisanship in their efforts to move us closer to this reality— they have quietly done so in the past few years, demonstrating that such collaboration is not beyond their reach. This report arrives at a moment when there is a real opportunity for reform. Within these pages are lessons that point the way forward and demonstrate that we can develop criminaljustice policies that are both wise and fair. We should not stop now. tap the american prospect

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Smarter Punishment, Less Crime Why reducing incarceration and victimization should be complementary goals

by Ma rk A.R. Kleiman

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espite the dramatic fall in crime rates since 1994, crime continues to impose massive social costs, strongly concentrated by race and class.

Crime-avoidance behavior does far more damage than actual criminal acts.

When businesses flee high-crime neighborhoods, they leave behind reduced services, fewer opportunities for economic growth, and diminished social capital and political clout. Just as concentrated poverty breeds crime, high crime sustains concentrated poverty.

Poor African Americans suffer disproportionately from the costs of crime.

Nearly a million black Americans are behind bars, and a black male high school dropout has a better than even chance of serving prison time before the age of 30.

Since most violent crime is intra-racial, African American victimization rates a4 january / february 2011

closely track the incidence of serious offending among African Americans.

The criminal-justice system is stacked against minorities and the poor but not only in the ways usually portrayed: high arrest rates, high incarceration rates, overaggressive—sometimes lawless— policing, and the cultivation of an informant culture that destroys interpersonal trust. The system also discriminates by under-policing and under-punishing crimes committed against poor and black people, especially poor black people in neighborhoods defined by high crime and concentrated poverty.

Because criminal-justice resources of all kinds (police, prosecution, and jails) are less unequally distributed than is victimization, offenses in high-crime areas receive, on average, less attention than similar crimes in low-crime areas. In

other words, the constitutional guarantee of “equal protection of the laws” is not being honored. Changing that ought to count as a central progressive demand.

Thus, the United States’ criminaljustice system confronts not one massive problem but two: We have too much crime and too much (of the wrong kind) of punishment, both concentrated in poor, black neighborhoods. These problems need to be addressed in tandem by developing strategies of crime control that can replace mass incarceration both in punishing offenders’ past crimes and in preventing future ones. The goal should be to return the incarceration rate to no more than 140 per 100,000 people—the peak rate observed between 1900 and 1975, but only a fifth of the current level— while continuing to drive down crime.

The good news is that we now know quite a lot about how to accomplish this goal.

The general claim that undifferentiated increases in social-service spending can reduce crime is unsupported by analysis or evidence. Yet specific interventions outside of the criminal-justice system can substantially reduce particular kinds of crime and aggressive behavior.

For example, a classroom-management technique known as the “good-behavior w w w. p ro s p ect. o rg

m e l e va n s / a p i m a g e s

A run-down neighborhood in Camden, New Jersey

c r i m i n a l j u stic e r e fo r m game,” in which a first-grade teacher divides students into teams that can win prizes if everyone behaves well, has been shown to reduce subsequent hard-drug use and conduct-disorder diagnoses by 50 percent, compared to randomly selected control groups. Though there is no published research showing crimecontrol benefits, conduct disorder is strongly correlated with crime.

Specific public-health measures can also reduce crime. Exposure to lead in early childhood has been linked to psychological impairments that can result in aggressive and criminal behavior as an adult. This has been demonstrated both by epidemiologist Herbert Needleman’s studies of delinquent and non­delinquent children and by statistical analysis correlating the de-leading of gasoline in the 1980s to the drop in crime in the 1990s. Completely de-leading residential buildings, estimates the economist Richard Nevin, could result in a 5 percent reduction in crime, which would offset the cost of lead-removal and perhaps yield future savings.

In these examples, however, crime reduction resulted as an unexpected side effect of a program designed around other goals. Similar gains could be seen if school districts, health departments, housing agencies, and child-welfare offices designed effective crime-control programs, but they rarely set out specifically to reduce crime. Until the directors of these agencies start to think of crime reduction as part of their mission, we will continue to miss opportunities to drive down the crime rate.

Naturally, the institutions of criminal justice also have a role to play in crime control. Their activities remain excessively dominated by ideology, bureaucratic politics, and professional habit, but we now know the operating principles that allow us to squeeze more crime-control benefit out of a limited stock of enforcement and punishment resources: a focus on outcomes in the form of safer communities rather than outputs such as arrests, convictions, and sentences; strategic concentration of resources on high-crime locations, situations, activities, groups, and individuals;

direct communication of credible deterrent threats about specific behaviors to selected offenders; and the substitution of swiftness and certainty for severity in assigning sanctions.

The most dramatic early application of these ideas was the campaign against the “squeegee men”—operators of a petty extortion racket masquerading as a windshield-washing service for cars stopped at traffic lights—in Manhattan in the early 1990s. The problem seemed intractable; the squeegee men routinely ignored the summonses that were issued to them.

ple whose behavior you want to change.

It is possible, for example, to break up crime-creating street drug markets by identifying and preparing prosecutable cases against every dealer in an area and then simultaneously warning all of them that anyone who continues to deal faces certain prison time; those who cease dealing at once are not prosecuted. In High Point, North Carolina, and East Hempstead, New York, such “low arrest” crackdowns permanently closed longstanding drug markets quickly and with a small number of actual prosecutions. The result was to decrease not only non-drug crime and disorder— returning the neighborhood to its residents—but also the number of hours officers devoted to policing the drug markets.

The biggest opportunity to achieve less crime and less punishment is in community corrections. We can let people out of prison—or not put them there in the first place—without increasing crime only if we do a better job of supervising them when they’re not behind bars.

More than 40 percent of murders and robberies are committed by people on probation, parole, or pretrial release.

Yet the community-corrections system might have been designed to maximize recidivism: It imposes too many rules, monitors compliance lackadaisically, and imposes sanctions rarely, almost at random, but with occasional ferocity.

Project HOPE (Hawaii’s Opportunity Probation with Enforcement) in Honolulu demonstrates that swift and certain sanctions for probation violations can dramatically improve probationer behavior while also saving money. Its success among long-term methamphetamine users, surprising to some drug-­treatment scholars, is just common sense. Project HOPE applies basic supervisory principles: clear rules, active compliance monitoring, and a quick, predictable, and unpleasant (but not drastic) consequence for every detected misstep. A first violation might draw 48 hours in jail, while a second violation might draw a week. The key is that the sanctions happen every time and right away.

The system discriminates by under-policing and under-punishing crimes committed against poor and black people.

But when the New York City Police Department announced that all squeegee activity would lead to physical arrest and followed through on that threat, squeegeeing all but disappeared. Police time devoted to the problem went down. A few years earlier, the New York City Transit Police had achieved a similar success against graffiti writers by labeling the sides of a small percentage of subway cars as “clean.” If vandalized, these cars would not leave the yard until graffiti had been removed. Taggers quickly learned that defacing a clean car was a waste of spray paint, because the tag would never be seen by an audience. The police then gradually increased the number of clean cars until they made up the entire fleet.

The central principle at work here is positive feedback. It’s the sort of “tipping” model described by economist Thomas C. Shelling: Many crimes are attractive to offenders only when others are also doing them, diluting the risk of punishment.

This creates a dynamic in which both high crime rates and low crime rates tend to be self-sustaining. It turns out to be possible to “tip” behavior from high-­violation to low-violation without using a lot of punishment; the key is issuing specific and credible threats directly to the peo-

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In an experiment conducted by Angela Hawken of Pepperdine University, HOPE probationers had 80 percent fewer positive drug tests, 72 percent fewer missed appointments, 50 percent fewer new arrests, and 71 percent fewer probation revocations than an identical group of probationers assigned by lottery to probation as usual. Project HOPE is now being replicated in at least four other jurisdictions. The Sobriety 24/7 program in South Dakota, which requires twice-daily breath tests for repeat drunk-driving convicts, achieves similarly impressive results.

If drug testing alone, when backed with HOPE-style sanctions, can cut recidivism in half, adding position monitoring in the form of a GPS–enabled anklet to community-­corrections practices should improve those results. Not only does position monitoring make it hard to commit a new crime without getting caught, it can be used to enforce a variety of restrictions, including curfews, stay-away orders, and requirements to appear for appointments.

Hiring an ex-offender doesn’t sound like a very attractive business proposition, especially when there are multiple applicants for every job; hiring an ex-offender guaranteed to show up for work sober and on time every day might have more appeal.

These programs are easier to sketch on paper than they are to carry out nationwide, but with the proof-of-­principle already in hand, there is no excuse for not moving aggressively to replace incarceration with an effective communitybased corrections system.

Our crime and incarceration rates are twin scandals—both disproportionately burden poor black neighborhoods. Since it is now possible to punish past crimes and prevent future crimes while drastically reducing the prison population, progressives can and should put an end to those two scandals. tap Mark A.R. Kleiman is a professor of public policy at the University of California, Los Angeles, and the editor of the Journal of Drug Policy Analysis.

His most recent book is When Brute Force Fails: How to Have Less Crime and Less Punishment. a6 january / february 2011

On the Block A pilot program in Oakland, California, combines community policing with social services and gets at-risk young men off the street.

by Chris Smith

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t’s been raining and the San Francisco Giants are on TV, so the streets are quiet. We’re cruising through East Oakland, one of the most violent parts of a violent city. A knot of drug dealers loiters in front of a housing project, and crackheads sit in folding chairs on the sidewalk. Two teenagers in hoodies saunter by; another weaves back and forth on a small bike. Anthony DelToro gestures toward them: “When you see youngsters like that, all in black, the majority of the damn time they got guns.” He pauses. “This is Oakland— everybody got a gun.”

DelToro, a 24-year-old East Oaklander who wears an extra-large white T-shirt and a Giants baseball hat, knows of what he speaks. He grew up in a Norteño gang neighborhood, sold coke, heroin, and weed and served stints totaling two-anda-half years in county jails. He now leads a Street Outreach team of locals in their 20s to 40s—some are ex-gang members and drug dealers, some have lost loved ones to violence. The common denominator is that they all command respect on the street.

They don white jackets (inscribed with the words “For a Safer Oakland”) and walk through rough neighborhoods four nights a week. Crime drops when they’re on the job: from 20 percent in an East Oakland hotspot to 32 percent in West Oakland, according to a study done for the city by an independent auditor. Statistics, however, don’t measure everything the outreach workers do. They negotiate truces, act as mentors, and offer criminals a future—that doesn’t involve prison or death—through jobs, counseling, or a face-saving way to return to school. “We may not have the

answer,” DelToro says, “but we can lead them to the people who do.”

There are only a dozen Street Outreach workers, but they play an outsize role in the city’s fight against crime. They’re not cops—far from it. Still, they are an integral part of Oakland’s Lifeline program, the local iteration of an innovative alternative-policing strategy that has cut down on arrests and decreased homicides by up to 50 percent in cities nationwide by combining iron-fisted law enforcement with old-school “root causes” measures such as wraparound social services.

As it turns out, in the most troubled neighborhoods, neither approach works well in isolation. Aggressive policing alienates the communities it aims to help, and the sheer level of dysfunction in places like East Oakland can frustrate even the best social programs. The success of Lifeline is that it joins these elements and ensures that each of the main actors (cops, community leaders, and service providers) reads from the same script. As Kevin Grant, an elder street statesman who spent over a decade in a federal prison for selling drugs and now coordinates the city’s violence-prevention network, puts it, “It’s a tag-team effort.”

The model was test run in Boston in 1996, at the tail end of the nation’s crack epidemic. David Kennedy, then a researcher at Harvard and now a professor at John Jay College of Criminal Justice, and two colleagues noticed that less than 1 percent of the population was responsible for the majority of violence in most cities. They decided to concentrate on these high-volume criminals, many of whom were gang members. They designed a program in which a coalition of authorities, both legal and moral, told these apparent w w w. p ro s p ect. o rg

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pa u l s a k u m a / a p i m a g e s

Cop-Out: A boarded-up recruiting center in downtown Oakland reflects the budget woes faced last summer when 80 police officers were laid off.

incorrigibles to quit killing and offered immediate job training and counseling if they did. If they refused to quit, the law came down on them—hard.

Operation Ceasefire, as it is known, was startlingly successful. Boston saw a 50 percent drop in murders. As Ceasefire spread to other cities, it became obvious that Boston wasn’t a fluke. In Cincinnati, gang-related murders fell by half. In Stockton, California, a workingclass city about 75 miles east of Oakland, gang-related youth homicides fell from 18 in 1997 to just one in 1998.

While the model focuses on curbing violence, it also tries to ensure its socialservices work takes hold. (Outreach teams aren’t used everywhere, but some cities have found them highly effective at both reducing violence and convincing offenders to accept help.) Kennedy now co-chairs the National Network for Safe Communities, of which Oakland and cities like Los Angeles and Chicago are a part.

Kennedy, who first published his ideas in this magazine (see “Can We Keep Guns Away from Kids?” Summer 1994), cofounded the network to help cities adapt the Ceasefire model to their needs by offering technical assistance, research, and specialists to aid in the rollout. In Oakland, the NNSC is beginning to finetune the city’s violence-­prevention strate-

gies and to research their effectiveness.

These measures are essential for securing the necessary funding and institutional support to entrench the programs as official policy. Kennedy’s intention is to “reset” the relationships between law enforcement and offenders by implementing the program everywhere it is needed. If that happens, he estimates, “it’ll cut the homicide rate by half nationwide, maybe more.”

Oakland certainly needs help. In 2009 it was ranked the nation’s third most violent city, according to the publisher CQ Press, which analyzes the FBI’s annual crime numbers and assigns an overall score for almost 400 cities. Oakland is a divided city, split between affluent hilltop neighborhoods and flatlands in which the poor scrape by, their streets patrolled by a police force often seen as an occupying army.

The city has experimented with what has become known as community policing. In criminal justice, that’s often shorthand for an alternative enforcement strategy that puts police in close contact with the communities they serve, collaborating to prevent crime instead of reacting to it. Of course, as implemented across hundreds of jurisdictions, community policing has meant different things depending on the locale.

In Oakland, a dedicated beat officer works proactively with neighborhood crime-prevention groups on local concerns like prostitution and drug-dealing to ensure that each community has a fixed point of contact with the police.

The policy has seen a number of false starts (one past police chief, for instance, didn’t like the idea of his officers “going native”), but crime has dropped over the last few years.

Faced with a budget deficit of $30.5 million last summer, however, Oakland laid off 80 cops and more than half of its neighborhood service coordinators and reassigned its community-policing officers to patrol. More budget cuts and layoffs are likely to happen by the end of this year. The Oakland Police Department insists that community policing will continue, but it is unclear what it will look like.

Howard Jordan, Oakland’s assistant chief of police, says that the department has trained its officers in preventive- and community-oriented policing, and that patrol officers will continue to tackle neighborhood problems when they have the time. “Our ideal is to make everyone a community-policing officer,” he says.

“It just depends on your definition of community policing.”

Lifeline, which plans to hire more outreach workers, promises to fill some of the the american prospect

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gaps in police presence. While Lifeline’s work isn’t community policing, it serves many of the same ends. Lifeline doesn’t ask cops to become social workers, as the cliché goes; it just asks them to enforce the law more selectively to avoid the indiscriminate crackdowns that anger communities, which frees police to concentrate on the worst offenders. The outreach workers help tamp down violence in the city’s most volatile areas and connect young guys on the corners with the social services that provide a path out of the thug life. When all the parts work together, communities can reclaim their neighborhoods. So far, Lifeline’s approach appears to be working.

Last spring, a police officer handdelivered a letter to Erik Agreda, a 28-year-old repeat offender who lives in West Oakland, demanding he attend a meeting for habitual offenders at City Hall. This is known as the “call in,” Lifeline’s police-run component. Call-in participants are either on probation or on parole and possess lengthy rap sheets.

Agreda was no exception. He had just finished his latest stint, 11 months for crack possession, in November 2009.

Agreda and 10 other men were summoned to a municipal conference room where they stared down a crowd of cops, U.S. attorneys, FBI agents, and neighborhood community leaders. Each speaker came at the subject from a different angle. The cops threatened prison time; the community leaders, which included relatives of crime victims, struck a more conciliatory tone. Their message was unmistakable: Stop the violence.

Agreda says he wasn’t impressed by the tough talk: “I thought it was bullshit.

They tried to scare us, saying they were going to hand our files to the feds.”

Afterward, an outreach manager asked Agreda if he needed help with anything. Agreda was unemployed and shot back sarcastically, “Yeah, can you find me a job?”

“I meant it as a bluff,” Agreda says.

He probably would have forgotten about the offer of help, but the case manager followed up a few days later with an opening for a temporary position. Soon Agreda was sorting trash and recycling

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and loading trucks and building furniture for Pottery Barn and West Elm. Agreda is trying to make the change stick. He’s been out of prison for a year— his longest period of being a free adult— and trying to get off probation for the first time in seven years. “I’ve been in trouble most of my life,” he says. “Usually it’s seven months and I’m back in again.

It’s time to grow up.”

Little hard data exists yet on Lifeline’s effectiveness, but the preliminary evidence is encouraging. There have been 11 call-ins with 80 habitual offenders since November 2009. (Another meeting was scheduled for November 2010.) Oakland’s unemployment rate is 17 percent, and these men rank among the city’s least employable, but nearly 30 percent have already found work. Close to 20 percent, meanwhile, are back in school.

While 19 of the men have violated their parole or probation, only eight have committed new offenses, a 10 percent recidivism rate compared to the county-wide

ings and homicides occurred in the first seven months of 2010. “When we started this process, there were bodies on the streets,” says Don Link, a former member of the city’s Community Policing Advisory Board who chairs a neighborhood crimeprevention group. “Now shootings are the exception rather than the rule.”

For all its promise , Lifeline is still evolv-

ing, and its future is uncertain. Oakland’s politics are defined by fiefdoms that rarely agree on criminal-justice issues, and programs come and go with terrifying speed.

There’s no guarantee, for instance, that the next mayor, who takes office in January, will continue to support Lifeline.

Grant, the violence-prevention coordinator, has seen this process up close over the years. “You can have a perfect program,” he says, “and it’s working, but in two years they’ll say, ‘Oh, it’s over with. There’s a new mayor in town, and that was married to the old mayor so wipe it from the table.’” It can be frustrating, but he says he hopes the new administration, seeing Lifeline’s success, will allow the program to grow.

Beyond crime statistics, Lifeline already has accomplished things that many Oaklanders would have thought unlikely, if not impossible. In its small-bore way the program is helping to bridge the divide between police and communities. Jordan was skeptical at first of working with ex-felons, but he’s a believer now: “The outreach workers reach the hearts and minds of people who would never listen to us.”

Back in West Oakland, Agreda says he’s doing well, managing his family’s gift store and raising his 3-year-old son.

He remains skeptical about the call-in but admits that it pushed him in the right direction: “In a weird way, it served its purpose.” tap

“When we started this process, there were bodies on the streets. Now shootings are the exception rather than the rule.” recidivism rate of 39 percent within the first year. Plus, only a handful of the new violations were violent, a minor miracle considering the group’s history.

A similar trend has played out in Ghost Town, a mostly African American neighborhood in West Oakland. This pocket of empty storefronts and rundown bungalows has seen 149 shootings and killings since 2007, the third-highest total in the city. Before Lifeline became involved, the police regularly swept the neighborhood and made many arrests, but it wasn’t enough. “Traditional police work hadn’t done the job,” Jordan says.

In 2008, the outreach teams began their work. The following year, police started the call-ins, zeroing in on the worst offenders. The violence has dropped sharply: Only nine of those 149 shoot-

Chris Smith is a writer and photographer who has worked in Africa, the Middle East, and at home in the Bay Area.

His work has been published in Afar, California, and on MotherJones.com. w w w. p ro s p ect. o rg

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Closed Circuit Could opening juvenile court hearings and records help uncover systemic abuse and corruption?

By Monica Potts

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ric Trapolsi was a 14-year-old student in a special school designed for children with behavioral problems when his court records caught the attention of Pittsburgh Post-Gazette reporter Barbara White Stack in 2005. Trapolsi complained that he had been thrown to the floor and choked by a worker at the Homestead, Pennsylvania, facility.

Upon reviewing Trapolsi’s case, Stack discovered that the claim was dismissed because of a discrepancy between the time stamp on a police report and another time stamp on hospital photographs of Trapolsi’s injuries. She combed through records of similar cases to uncover a startling truth: Judges and other fact-finders often deemed children in group homes or detention centers not credible when they complained of abuse in those settings.

Out of 100 cases, only three complainants were believed. In contrast, that ratio increased more than tenfold for children who reported parental abuse.

Stack’s reporting uncovered systemic mistreatment of abused or neglected juveniles within Allegheny County courts: Workers in group homes for juveniles sometimes had worrisome criminal histories, state agencies had broad powers to take children from their parents, and physical restraints were overused on children in group homes. Early in Stack’s reporting on the juvenile-justice system, the paper won an appeal arguing in favor of opening “dependency” cases to reporters and the public to prevent such abuse. Like most juvenile-justice proceedings, they had been closed. Before that, Stack had to work her way into the hearings and gain access to records and get special permission from judges.

“This situation should be anathema in a self-governed, democratic society,” she wrote for the Journalism Center on

Children and Families in 2007. “How can taxpayers decide policy about child welfare and juvenile delinquency when they have no idea what goes on behind those closed doors?”

In 2003, the Pennsylvania Superior Court ruled that dependency hearings should be open. However, the ruling did not apply to delinquency hearings—cases in which juveniles are accused of crimes.

After a scandal broke earlier this year in Luzerne County, Pennsylvania, in which two judges were accused of funneling children to for-profit correctional centers for even the most minor of crimes in exchange for cash, advocates have been calling for delinquency cases to be opened as well.

For many years, unaccountable detention centers treated adolescent and teenage offenders the same as adults, exposing them to unspeakable abuse and protecting corrupt officials and workers. It was no surprise that recidivism rates increased for these young offenders. Many states have since reformed their juvenile-justice systems by developing incarceration alternatives, providing counseling and education services, and helping young people re-enter society when they’re released from detention centers or group homes. However, the majority of juvenile court systems are still closed to the public. While every state establishes its own rules for the juvenile-justice system, most states keep courtrooms and records confidential for both delinquency cases and dependency cases. Critics argue, as Stack did, that closed systems allow corruption and negligence to run rampant or, at the very least, keep the public from knowing if juvenile-detention or child-protection centers are underfunded or functioning poorly.

The case in Pennsylvania and similar ones around the country illustrate why some states are considering expanding access to certain juvenile hearings. The idea is based on the same theory that governs public access to adult court proceedings: Sunshine is the best disinfectant. Ideally, expanded access and press coverage can spur reform when and where it’s needed, policing the system more effectively. While the openness of the adult system hasn’t achieved those results, some are hopeful that reporters and children’s advocacy groups can act as watchdogs by attending hearings and reviewing records and will therefore find out when individual children are at risk or when malfeasance is widespread.

It remains controversial to make juvenile cases public; advocates of confidentiality argue that privacy protects the reputation of adolescents who still have time to turn their life around. It also protects victimized children who suffer at the hands of parents or caretakers. So far, states have proceeded with caution in opening the process—only a limited range of hearings have been made public, and interested parties are allowed to request that certain cases stay closed. In other words, judges and courts still have a lot of control over the process. At the same time, there is no aggregated dataset that reporters and advocates can consult or use to compare against anecdotes they hear in court or read in a file. Such statistics, which are not collected uniformly across jurisdictions, are an essential missing piece of this equation—easy access to hard data could be a powerful incentive for reporters and advocates to look more closely at potential problems in the system.

Most juvenile hearings in the U.S. were open until a series of reforms in the 1960s closed them, provided there was no legitimate public interest in a case.

By 2003, at least 12 states had begun to reverse course and opened dependency hearings to the public and press to ensure quality and hold the system accountable.

Connecticut is the latest state to experiment with this approach. Last year, lawmakers established a pilot prothe american prospect

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The Ron Jackson State Juvenile Correctional Complex, Brownwood, Texas

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Few members of the public have sat in on hearings, and even fewer reporters have attended proceedings. Judge

Reporters and advocacy groups should be acting as watchdogs to find out when individual children are at risk.

James Bentivegna, who presides over juvenile cases in the Middletown courthouse, reported back to the advisory panel and attributed the low attendance to the partial nature of access: Reporters still aren’t allowed to look at court records, so everything they hear in court is unverified. Only portions of hearings involving testimony are open. Moreover, dependency hearings don’t generate the kind of sensation and public interest that would attract readers, and few newspapers have reporters to spare for multiple hearings on a slowly unfolding case.

In this, Connecticut hasn’t turned out much differently than two other states that studied and released reports on the effects of opening dependency hearings.

Minnesota conducted a three-year study that ended in 2001 after opening its

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gram to open dependency hearings to the media and select members of the public, like extended family and foster parents.

Advocates for children have over the years consistently questioned attorney quality and judicial decisions, both of which remain unchecked by public scrutiny. One group, the Center for Children’s Advocacy, proposed and helped write the pilot-program legislation, and its co-director, Sarah Eagan, serves on the initiative’s advisory board.

In an interview in 2009, Connecticut state Sen. Andrew McDonald said he was at first skeptical of opening proceedings but began to consider the idea because groups like the Center for Children’s Advocacy were on board. “This proposal came to us from the people who are most actively involved in trying to protect juveniles,” he said at the time. The Legislature decided to open dependency hearings in only one courthouse in Middletown. The program is being closely monitored for a year before a special state-­appointed commission recommends whether to discontinue the program or expand it to other kinds of hearings and other locations. The program is set to end in January.

Deborah Fuller, a spokesperson for the state’s judicial system, says the program has not generated much interest.

dependency hearings to the public. In many instances, there was a slight but noticeable increase in hearing attendance, but the audiences primarily comprised of extended family members and foster parents and were generally fewer than five people. Arizona, which opened dependency hearings for a pilot program in 2003, found a similar lack of interest.

These studies revealed little evidence that opening proceedings would have devastating effects on children. But there also haven’t been any reporters dedicated to uncovering and inspiring solutions to systemic problems.

The Connecticut commission will issue a final report to the Legislature before it is, by statute, dissolved. Fuller says the commission hasn’t finalized its recommendations yet, but she expects the minimal participation in the program to weigh heavily in the decision. “My own personal impression is that you do have to look at [this] again,” she says. “If people aren’t coming, then how can you accomplish the purpose?”

There is a movement to standardize and make public data on juvenile cases, which might motivate reporters and advocates to scrutinize the system. Currently, open adult courts have trouble drawing the attention of reporters unless a case is salacious, and journalists typically rely on nonprofit and advocacy organizations to analyze any available data.

A bill tabled in 2009 to reauthorize the Juvenile Justice and Delinquency Prevention Act—first passed in 1974 to set standards for protecting juveniles in the justice system—included a provision to provide the public access to some aggregate data, primarily on the race and ethnicity of children, from juvenile courts. Important figures, like the number of youth in delinquency cases who had previously experienced abuse or neglect, or detailed statistics on racial disparities within the system, are not available or uniformly collected. “Sometimes it requires peeling the onion of data so that you get deeper and deeper, but the aggregate data gives you first a

c r i m i n a l j u stic e r e fo r m general idea of what kinds of problems there are,” says Mark Soler, executive director of the Center for Children’s Law and Policy, a nonprofit advocacy organization.

Soler thinks making data available doesn’t obviate the need for open hearings. He’s worked in court systems in several states, and while there are real concerns about keeping children’s information confidential, there are also broad problems that haven’t been subject to

public scrutiny, and the media can perform a valuable watchdog function if permitted. “Reporters are much more interested in telling a personal story than talking about aggregate data,” Soler says. “If a personal story is illustrative or demonstrative of a pattern of problems of a juvenile court, I think it’s worthwhile to be used that way. … There’s more to be gained by allowing public scrutiny than by allowing whatever happens in court to be secret.” tap

Indefensible Five decades after a landmark Supreme Court case establishing the right to a public-defense lawyer, the poor still lack adequate legal representation.

By Va nessa Gregory

J

une Hardwick has been brainstorming with a black marker on postersize papers covering her office wall.

The Jackson, Mississippi, assistant public defender is reviewing the facts—and possible defense arguments—in a client’s statutory rape case. “No rape kit,” reads a bullet point. “No panties,” reads another.

She has stacked and sorted her indicted cases on the floor beneath the papers; each folder represents a person too poor to hire a private attorney. On top of the last pile sits a note on which Hardwick has scrawled “need to visit.”

That Hardwick plans to see clients in jail shouldn’t be remarkable. But courtappointed lawyers who don’t meet—or even talk to—clients until the eve of trial are one symptom of a crumbling publicdefense system that critics say fails clients, communities, taxpayers, and the Constitution. In the worst instances of substandard legal defense, the innocent lose liberty. More commonly, a poor person serves extra time when robust counsel might have secured a shorter sentence, probation, or stint in a drugrehabilitation program.

National numbers on indigent defense

are scarce, but it’s clear that the vast majority of defendants qualify for courtappointed counsel. Public-defender offices across the U.S. spent $2.3 billion on more than 5 million cases in 2007—and those figures don’t include expenditures in approximately 30 percent of counties, which use a contract or assigned-counsel system instead of staff attorneys. Of state and county publicdefense systems recently surveyed by the Bureau of Justice, more than 70 percent reported caseloads that exceed national professional guidelines, a burden which can clog dockets and crowd jails before a verdict ever arrives.

After sentencing, there’s the social cost of extra prison time and the actual cost: Incarcerating an inmate for a year averaged $22,650 in 2001, the latest year for which national data is available.

More recent tallies, such as those from California, show skyrocketing costs. The Golden State spends nearly $50,000 a year to imprison an individual. Meanwhile, funding for indigent defense, which might minimize the prison population, is wildly uneven. According to a 2008 report from the National Legal

Aid & Defender Association, per-capita spending on public defense ranges from $40.95 in Alaska to $4.15 in Mississippi, the lowest in the country.

Hardwick’s office in Mississippi, like many across the country, has been further hamstrung by the recession: The Hinds County Board of Supervisors instituted furloughs one day a month for county employees in April. Despite this setback, Hardwick’s ability to represent clients has improved thanks to the Southern Public Defender Training Center. The threeyear classroom and mentorship program recruits and equips bright young lawyers to serve a corner of the justice system that desperately needs them. Lawyers attend two weeks of classes with veteran public defenders at Samford University’s Cumberland School of Law in Birmingham, Alabama. They reconvene every six months to discuss challenges, consulting with mentors in the interim. The center has trained 95 attorneys since 2007. The neediest offices pay as little as $250 to enroll a public defender.

The center’s founder, Atlanta lawyer Jonathan Rapping, says the program not only provides defense-specific education that’s too expensive for many offices; it promotes professional pride and a culture of thorough, vigorous representation. “We need to have a community of public defenders who care as much about their clients as O.J. Simpson’s lawyers cared about him,” he says.

For Hardwick, who is in her second year of the program, the training has provided skills and experience that law school did not. She is learning strategies for persuading juries and communicating with clients. She has been encouraged to conduct her own investigations—a task she admits she hadn’t been doing well.

She has learned to excel in direct and cross-examinations and to break bad habits, like waiving preliminary hearings. “It’s our first stab at discovery,” Hardwick says. “Now I know how to milk it. I know how to ask all the questions that I need to help my client.”

This year, the Department of Justice awarded the Southern Public Defender Training Center a $700,000 grant to expand its work. The award is one of sevthe american prospect

a 11

eral reform-minded public-defense initiatives funded by a $15 million Bureau of Justice Assistance grant program.

So far, more than $4 million has been awarded to indigent-defense initiatives in fiscal years 2009 and 2010, up from zero in 2008. The shift within this prosecutorial-minded agency signals the Obama administration’s seriousness about reforming public defense.

In February, Attorney General Eric Holder told lawyers at a Washington, D.C., symposium that the country’s criminal-defense system is “morally untenable” and “economically unsustainable,” and that solutions are needed.

“It must be the concern of every person who works on behalf of the public good and in the pursuit of justice,” he said.

The goal itself—guaranteeing that every person accused of a crime has a lawyer as competent and dedicated as Hardwick— is long overdue. But can Holder’s call to action be fulfilled?

Some states provide 100 percent of the funding for indigent defense, some split the cost with counties, and some require counties to foot the entire bill.

The American Bar Association and the National Association for the Advancement of Colored People have chronicled the appalling outcomes of a broken system. Defendants spend excess time in jail awaiting trial—sometimes as much or more time than their eventual sentence.

Overburdened or inadequately trained lawyers fail to investigate or challenge the state’s evidence and instead urge plea deals. Prosecutors capitalize on weak defenses to get the accused to waive counsel and plead guilty.

“There’s no oversight, no one holding providers accountable, no one removing the bad actors,” says Michigan state appellate defender James Neuhard, who, through his work with the American Bar Association, has become a leader in indigent-defense reform. About 40 percent of cases referred to his office

The Constitution promises the accused

“the Assistance of Counsel for his defence,” but the landmark case establishing the right to a state-appointed attorney for all defendants is less than 50 years old. In 1963, the U.S. Supreme Court unanimously concluded in Gideon v. Wainwright that the “noble ideal” of a fair trial “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

What happened in the wake of that case was somewhat less noble. No single method of appointing counsel exists in the U.S. Instead, systems vary from state to state and even from county to county.

In some jurisdictions, public-defense offices pay staff a salary. In others, judges appoint attorneys who may also have a private practice, or counties hire attorneys using a low-bid contract system where a lawyer defends a set number of cases for a lump sum. In Florida and in parts of Tennessee, California, and Nebraska, top public defenders are elected in the same manner as district attorneys. Elections sound good, but the public rarely provides much oversight in the interest of criminal defendants. a 12 j a n u a r y / f e b r u a r y 2 0 1 1

presented false evidence during the sentencing phase, Carrington says. Hodge’s advocate, his court-appointed lawyer, never bothered to test the accuracy of those claims. Instead, it took a federal judge and nine years to correct the injustice. If that kind of incompetence can happen in capital cases, Carrington says, then “you can imagine what’s going on in the daily scrum of property crimes and drug offenses.”

These are the kinds of cases Hardwick handles in Hinds County, and she has seen how arrests and convictions can decimate the already tenuous lives of the poor. “It’s nothing for them to be arrested and in the course of that, lose their homes, furniture, clothes, jobs, spouses,” she says. Most of Hardwick’s clients are undereducated black men—some dropped out of school in junior high— and a dysfunctional public-defense system arguably exacerbates racial injustice.

But the issue is a hard sell. “There’s not much of a national uproar to try to help people that are thrown into the criminal-justice system and branded criminals,” says Rapping of the Southern Public Defender Training Center.

And while countless dedicated lawyers represent the poor, it’s no surprise that many f lee for private practice. “If you spend any time in courtrooms across America, the deck is so stacked against defenders that it can have a really dispiriting, debilitating effect on you,” says Knox County public defender Mark Stephens, who has worked in the field for 20 years. The median starting salary for public defenders was $46,000 in 2007, a major disincentive to law school graduates who often have six-figure debts from student loans.

Hardwick’s debt is about $150,000.

Like the Southern Public Defender Training Center, Stephens’ office in Knoxville, Tennessee, offers another model for innovative public defending.

With foundation, state, local, and federal funding, he has hired social workers, an employment counselor, and volunteers from local youth programs, which work

New funding for indigentdefense initiatives signals the Obama administration is serious about reforming public defense. are overturned on appeal because of sentencing-guideline mistakes, he says.

A client may have been credited with nonexistent prior convictions, for example, which automatically increased the prison term. A defense attorney with the time, training, and will to mount a serious defense, Neuhard says, would easily catch such simple errors. Instead, taxpayers fund a new trial and the incarceration costs.

Tucker Carrington, director of the Mississippi Innocence Project, says that serious defense-related mistakes appear in nearly every capital case his group handles. Carrington points to an example in Lowndes County, Mississippi, where a federal judge overturned a death sentence for a man named Quintez Hodges in September. The prosecution

w w w. p ro s p ect. o rg

c r i m i n a l j u stic e r e fo r m to address the circumstances that drive people into the criminal-justice system.

The approach, known as holistic defense, asks lawyers to examine more than the criminal charge. It’s gaining popularity but can be politically fraught. The top public defender in Maryland was fired in 2009 after being told to justify the social workers on her staff.

Stephens and other advocates, however, say it’s effective. “If I don’t deal with the addictions, the mental-health problems, the fact that at 14 years old your client’s goal is to be a drug dealer because drug dealers make a lot of money and wear nice clothes, beating the charge won’t do a thing,” Stephens says. “The mistake we make as a country is we don’t see public defense as the outlet to do that.”

k a m e n ko pa j i c / a p i m a g e s

Obviously, a few forward - thinking

public defenders and a skills-based training program aren’t enough without institutional reform. Most observers acknowledge that there won’t and shouldn’t be a one-size-fits-all model for rural and urban, high-crime and low-crime jurisdictions. They generally agree, though, that states need to institute and enforce standards that ensure a defense attorney has manageable case­ loads, resources, and supervision. Another critical aspect, says Jo-Ann Wallace, president and CEO of the National Legal Aid & Defender Association, is ensuring that public defenders are independent from the judiciary and report to a board or commission that focuses on policy and has oversight of the work.

Those reforms are unlikely to happen unless the federal government helps— and, if necessary, forces—states to overhaul public-defending programs so that they meet a constitutionally adequate standard. Earlier this year, the Department of Justice created the Access to Justice Initiative, appointing the liberal Laurence H. Tribe, a Harvard professor and a leading legal scholar, as its head.

Many reformers found both developments encouraging. “That really signaled that the Department of Justice was taking seriously this mandate to address the indigent-defense crisis,” says Christopher

Durocher, government affairs counsel for the Criminal Justice Program at the nonprofit Constitution Project.

The case for reform is simple, Tribe says. “Our country is dedicated to the idea that people who are accused are innocent until proven guilty and deserve a defense,” he says. “And partially, it’s practical: We waste an enormous amount of time and money.”

need Congress’ assistance. The Justice for All Reauthorization Act of 2010, sponsored by Sen. Patrick Leahy of Vermont, would require the attorney general to assist states in meeting that constitutionally adequate standard. If states failed to do so, the Justice Department would have the right to sue. Lawsuits would likely be rare, but the threat is powerful. “This is sort of like what they say about [the sword of] Damocles,” says Tribe, whose office helped draft the bill. “It has its effect not when it drops but just when it hangs.”

Until then, poor defendants

will have to rely on patchwork reforms and hope their lawyer possesses the resources and skills to mount a just defense.

For her part, Hardwick continues to fight for her clients.

Recently, she took the statement of Euneka Davis, whose fiancé, Thomas Stevens, was Policing The States: Attorney Laurence Tribe has joined the jailed on a charge of being a Justice Department to spearhead an initiative aimed at improving convicted felon in possession legal representation for the poor. of a firearm.

Tribe’s initiative can claim some early Since receiving the case, Hardwick successes. The staff is working with the has tracked down the relative of one of Bureau of Justice Statistics to collect the police witnesses, who said that the data on indigent-defense systems. This witness, her sister, is blind and that she is critical for quantifying the problem was also drunk when she told police and tracking what reforms work and Stevens had a gun. Now, Hardwick sits which don’t. Currently, there’s a wealth behind her keyboard and types Davis’ of anecdotes about the broken system but statement. Wiping tears away, Davis few national statistics. “All of those anec- insists that she never saw Stevens with dotes, when you confront a limited bud- a gun on the day in question or at any get and skeptical lawmakers, they have to other time. She adds that Stevens used to deal drugs but had changed. Before be backed up by data,” Tribe says.

The initiative is also advising several his arrest, he worked mowing lawns and jurisdictions in Alabama, Illinois, and trimming trees.

When they finish, Hardwick prints Louisiana that are attempting to reform out a copy of the affidavit for Davis to their public-defending practices. In New review and sign and explains that a lie Orleans, for example, through consultais a prosecutable felony offense. Davis tions with Tribe’s staff, criminal-justice reads the document in silence, then looks professionals are designing a pretrial up at Hardwick.

“This is right,” she tells release program to ease the stress on the public defender.

“You did right.” tap jails and public defenders.

His handpicked team of six is small, and the challenges are daunting, but Vanessa Gregory is a writer based Tribe expects to see significant progress in Oxford, Mississippi, and a 2010 Middlebury fellow in environmental within a year or two.

For that to happen, however, Tribe will journalism. the american prospect

a 13

May It Please the Court Problem-solving courts have a track record of lowering recidivism and incarceration costs, but they still don’t reach enough offenders.

by Sasha Abramsky

I

nside a nondescript building on Polk Street in San Francisco’s troubled Tenderloin district, an experimental court is trying to sort out the lives of the accused. Known as the Community Justice Center, the court regularly sees prostitutes, thieves, alcoholics, drug users and dealers, and mentally ill and homeless people primarily for nonviolent offenses. The average defendant has been arrested locally eight times.

Instead of sending offenders straight to an overcrowded and expensive jail, presiding Judge Loretta Giorgi tries to connect them with social services that might finally end their downward spiral.

On a recent fall day, Giorgi asked a middle-­aged defendant to attend drugrehab sessions, admonished a young, tattooed man for sleeping through counseling sessions, and ordered another defendant to undergo more frequent urinalysis. The court makes these mandates easy to fulfill: The Polk Street center houses not only the court but also social services, including case-management, housingassistance, and onsite support groups.

The defendants are given highly personalized and structured plans of action designed to distance them from crime, drugs, and alcohol during their time at the court, which can last from months to more than a year. Many are also required to perform community service.

If an offender successfully completes counseling and substance-abuse treatment, Giorgi will often cut the original sentence or probation period, or the district attorney’s office will reduce or dismiss the charges. After a graduation ceremony, in which defendants receive a diploma to the applause of the courtroom, some can go on to apply for and a 14 j a n u a r y / f e b r u a r y 2 0 1 1

emerge from the system with a clean record. Failing the program, however, means that they will likely serve the original sentence behind bars. Since opening its doors in March 2009, the center has seen 2,950 defendants.

“We’re taking the hardest-to-serve cases and getting the most success,” says Lisa Lightman, director of San Francisco’s Collaborative Courts, which oversees 11 nontraditional courts, including the Community Justice Center. In May 2009, her office published a study showing that mentally ill offenders who completed treatment through the city’s Behavioral Health Court were 55 percent less likely to be charged with a new violent offense than were their peers who had not been through the program. Overall, BHC clients were 26 percent less likely to be charged with any offense after finishing treatment. Drug-court participants were also far less likely to be charged with new crimes and were arrested fewer times in the three years following their original arrest than were addicts who did not go through the specialized court process.

There are cost-saving benefits, as well.

The San Francisco court system has calculated that by the third year, the behavioral courts were saving $1 for every 90 cents invested.

“You see folks who have been functioning at a very, very low level for a long time,” Giorgi says. “We see victory in even small things. If they’re committing crimes once every six months instead of once every month, that’s a success. And then there are big things. We see amazing changes in addicts who’ve turned their lives around.”

These nontraditional courts are formally known as problem-solving courts.

They have emerged over the past two decades as an alternative to sending habitual offenders to prison or jail yet again. While their institutional origins can be traced back to diversion programs created in the 1960s, their specific carrot­and-stick approach is more recent, as is their embrace of fairly stringent supervision requirements for clients. These measures include regular urinalysis and sometimes even electronic monitoring; the reliance on evidence-based treatment and rehabilitation means problem-solving courts tend to produce better results.

The idea is to provide a combination of punishment and treatment that lowers recidivism and increases participation in and completion of drug- and mental-health treatment programs.

Though experimental in their efforts to reduce recidivism, these courts have the same authority as their traditional counterparts. Critics argue that the courts force some offenders into unnecessary treatment and that at-risk individuals shouldn’t have to wait until an arrest to gain access to needed social services. Yet studies have repeatedly shown that these courts save money and prevent future offenses. In an era in which one in 100 adult Americans is incarcerated, advocates of problem-solving courts face an incredible challenge: reproducing those outcomes not just for tens of thousands but hundreds of thousands, if not millions, of offenders nationally.

The first drug court in the country was founded in Miami in 1989 with the intent of diverting low-level, nonviolent drug offenders into treatment. Prosecutors had to approve the diversion, and defendants were told they should expect to spend at least a year in treatment. Four years later, a broader alternative model was pioneered in New York, when the Midtown Community Court began hearing misdemeanor and lowend felony cases, involving crimes like shoplifting, graffiti, farebeating, and prostitution. The goal was to reduce the number of New Yorkers entering jail and prison. In the decades since, the number of specialized courts, including ones that handle domestic-­v iolence and mentalhealth cases, has mushroomed. There w w w. p ro s p ect. o rg

c r i m i n a l j u stic e r e fo r m are now more than 3,000 courts nationwide, according to the New York–based nonprofit organization Center for Court Innovation.

Some critics of drug-law reform argue that the courts are coercive. The National Association of Criminal Defense Lawyers has blasted the model, calling the courts “conviction mills” for forcing defendants to plead guilty to charges simply to access treatment programs. Judges and attorneys, critics say, are also aggressive about securing pleas and enrolling offenders in treatment programs, including medication regimens and drug rehab, which potentially infringe on a defendant’s due process and personal rights.

These are legitimate concerns, and many in the field are trying to address them both by engaging defense lawyers and counselors more actively in discussions about what to do with clients who aren’t succeeding in the program and by emphasizing the use of short stints in jail rather than sending offenders back to prison for noncompliant behavior.

While advocates remain sensitive to such criticism, they can also point to consistent research showing that the alternative model, at least on the small scale at which it is currently employed, is successful at reducing recidivism and saving taxpayers’ money.

To develop viable and safe alternatives to incarceration for a range of offenders, the courts use risk-assessment models to gauge the most appropriate approach.

The model generally evaluates education level, age, drug addiction, and when the criminal behavior first began. Most states have their own risk-assessment tools for a range of defendants, including for juvenile and domestic-violence cases. In mental-health courts, offenders are diagnosed, and their history of medication compliance is reviewed.

The assessment is an evidence-based method of achieving the best outcome for the offender and the system, and as in San Francisco, many of the courts have impressive track records in reducing recidivism as well as trial and incarceration costs. A 2007 study from the RAND Corporation showed that defendants in Allegheny County, Pennsylva-

nia’s mental-­health courts re-offended at a lower rate than their peers and that the savings associated with this increased over time, suggesting graduates weren’t staying away from crime only in the short term but were changing their behavior long-term.

There’s no average cost to creating and running a problem-solving court; some have minimal expenses while others require hundreds of thousands of dollars to maintain annually. Greg Berman, director of the Center for Court Innovation, says the costs depend on existing courtroom infrastructure and supervision needs.

Even with those expenditures, costbenefit analyses by the National Institute of Justice have concluded that problemsolving courts save taxpayers about $1,300 in treatment and other costs and between $6,000 and $12,000 per participant in reduced costs associated with recidivism and victimization. There

court out of an estimated 1.5 million who might be eligible.

Berman believes in spreading the successful practices of problem solving courts, including through the conversion of traditional courts. Of course, this requires providing judges with the right training—a daunting task since the curriculum for standard skills-based seminars is determined state by state. Jane Spinak, a Columbia University professor of law and co-chair of the Task Force on Family Courts in New York City, also worries about the role of judges in problem-­solving courts. Many judges, she says, don’t have the background to act as de facto social workers to drug-addicted, mentally ill, and otherwise troubled defendants who come before their benches.

Another obstacle to expansion, Berman says, is the wildly varying eligibility guidelines. These are decided county by county and often after local judges, defense attorneys, and prosecutors have debated the terms.

Berman doesn’t want to stif le local innovation but said the federal government, through the Bureau of Justice, could use its influence in funding projects and providing technical assistance as well as its power to issue new regulations to encourage local courts to be as broad-minded as possible in determining eligibility.

Despite these challenges, problem­s olving courts remain essential to reforming the justice system. The Bureau of Justice set aside $45 million for drug courts in fiscal year 2010 and offers technical assistance to fledging and established mental-health courts. “There’s a real hunger for alternatives to incarceration,” Berman says. “There’s a real hunger for programs that can marshal data for their efficacy. There’s a moment to be seized.” tap

These unconventional courts, which save the taxpayers thousands of dollars per participant, are an essential part of reforming our justice system. are other convincing studies, including a 2004 report from the National Drug Court Institute that found treating drugcourt clients was significantly cheaper than incarcerating them.

In the wake of such research, the Conference of Chief Justices, a national group comprising senior state-level judges, has endorsed expanding state networks of problem-solving courts to make them an integral part of the court process rather than an on-the-margins experiment.

And that’s what they are at the moment. Data show that the courts reach only a sliver of the offenders who could benefit from such an intervention.

A 2008 Urban Institute study found that only 55,000 individuals had been to drug

Sasha Abramsky is a Nation magazine contributing writer and a De¯mos fellow. He is the author of five books, including Inside Obama’s Brain. the american prospect

a 15

Permanent Lockdown Forcing ex-offenders to pay for their incarceration is yet another perverse policy that makes successful re-entry next to impossible.

by Ada m Serwer

M

issouri defense attorney Justin Carver has seen it a million times. One of his clients, an 18-year-old parolee, was about to be sent back to prison because he was late paying restitution and “user fees” related to property-damage and peace­disturbance charges. The client showed up at court with $200, more than enough to pay off his $118 debt, in the hopes he could convince the judge to let him stay out and graduate from high school.

The judge said he’d take the money, but Carver’s client would still have to spend 20 days in jail. Since he wouldn’t be able to graduate anyway, Carver’s client pocketed the $200 and spent two months in jail. Given that one Missouri countyprison administration estimated the cost per day of housing a prisoner at $64, it’s more than likely that stay cost the state several times the amount Carver’s client owed.

“If the taxpayers knew that was going on, they’d go bananas,” Carver says.

Indeed, the fact that the United States incarcerates too many people and spends too much money doing it is driving criminal-­justice reforms in cash-strapped states around the country.

Seven million Americans are in some phase of the criminal-justice system—on probation, incarcerated, or on parole— and spending on corrections has grown 300 percent in the past 20 years. The prison system now costs American taxpayers more than $60 billion annually.

With a nationwide recidivism rate of 66 percent, the problem is obvious: Too many people who go to prison come back within a few years of being released.

For all the focus on shrinking the bloated prison system, states aren’t a 16 j a n u a r y / f e b r u a r y 2 0 1 1

always taking into account the role recidivism plays. They may be releasing some offenders or cutting sentences, but state lawmakers have largely neglected to consider how to help these former inmates successfully re-enter society. In January, Gov. Arnold Schwarzenegger of California touted his plan to reduce corrections costs, lamenting the tragic fact that the state spends more on corrections than it does on public education. With more than 170,000 inmates, California has the highest prison population in the country and also the highest recidivism rate—70 percent. The governor eventually called

wanting to release dangerous felons early. Neither side was willing to consider the one thing that might actually cut costs: reducing the number of people in prison. The dispute reflected a perilous dynamic for corrections reformers.

State governors with recession-ravaged budgets are attempting to reduce prison costs without reducing their prison populations. They are reluctant to invest in solutions that make it look as though they’re “going easy” on people who have committed crimes, so programs to help the formerly incarcerated re-enter society have been given the short shrift in fiscally motivated prison-reform plans.

A 2010 survey published by the Pew Center on the States found that 61 percent of respondents supported sending fewer low-risk, nonviolent offenders to prison and that 75 percent favored reducing prison terms for such offenders if the ultimate goal was to save money, despite the fact that the sample skewed conservative. The results suggest Americans would be receptive to an effective reentry program. Seventy-seven percent strongly agreed with the statement that “an effective probation and parole system would use new technologies to monitor where offenders are and what they are doing, require them to pass drug tests, and require they either keep a job or perform community service.”

The truth is that most successful reentry programs focus on counseling and job training, relying on the commitment of enthusiastic volunteers. We don’t yet know which of these programs can be effectively replicated by state and local governments. Recent studies have shown success with more systemic approaches to re-entry, such as deterring ex-offenders from violating the terms of their parole by threatening swift and sure punishment.

But a recent Department of Justice inspector general’s report concluded that federal grants to re-entry programs weren’t being properly evaluated for effectiveness, so there was no way to determine whether programs that received money were successful in reducing recidivism. The

Lawmakers, reluctant to appear to be coddling criminals, give short shrift to re-entry programs. for broader reform efforts, but his initial plan did not include alternatives to incarceration, reflecting a perilous dynamic for corrections reformers.

“The knee-jerk reaction that we used to see was that when corrections budgets are tight, they cut programs behind bars,” says Nancy La Vigne, a scholar at the Urban Institute. “But I think this crisis is big enough, that that’s just not enough, so now they’re thinking differently about who needs to be behind bars.”

In the recent Florida governor’s race, Republican candidate Rick Scott— now the governor-elect—pledged to cut prison costs by a billion dollars, mostly by reducing the salaries and benefits of prison officers, who responded with an ad campaign that accused Scott of

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pat g r e e n h o u s e / b o s t o n g lo b e / l a n d o v

c r i m i n a l j u stic e r e fo r m question is whether systemic approaches can nudge the formerly incarcerated into making the kind of prudent life decisions other programs try to encourage through counseling and job training. Of course, swift sanctions and job training aren’t mutually exclusive approaches.

But when the goal is to save money rather than improve the corrections system, states can undercut their own efforts at reintegrating the formerly incarcerated into society. As both conservatives and liberals leave behind the old “tough on crime” platitudes and begin to focus on a cost-benefit analysis of corrections policy, their emphasis on reducing costs can create perverse incentives—like crushing ex-offenders with exorbitant “user fees.”

According to a recent study by the Brennan Center for Justice, the 15 states with the largest prison populations— which together house almost a million people, or more than half of the stateprison population in the U.S.—all impose some kind of fee post-conviction, and all 15 impose parole, probation, or supervision fees. In Illinois, the Shriver Center estimated that the total cost in fees for being convicted of felony drug possession was $1,445 in 2009. And the fees don’t stop when an inmate leaves prison. Florida charges its inmates for postrelease supervision while the formerly incarcerated are on parole, and some states actually charge parolees for treatment. If they fail to pay, they could end up reincarcerated—not for committing a crime or failing a drug test but simply for being too broke. While these fees vary state by state based on the rationale for imposing the fee, the need to close a budget gap often seems to result in an arbitrary financial penalty on someone involved in the criminal-justice system.

“People are coming out of prison owing substantial amounts of money, many times in the thousands of dollars,” explains Rebekah Diller, deputy director of the Justice Program at the Brennan Center. “It’s precisely at the time in their lives when their earning power is lowest and they’re least able to pay.”

As a result, the incentives for the formerly incarcerated to go straight are

Job Prep: An instructor directs an inmate taking part in a 12-week Culinary Arts Program at the Middlesex House of Correction in North Billerica, Massachusetts.

undermined. “There is virtually no margin of error for that individual—a trip to the doctor [or] if their vehicle breaks down and they need a $200 repair, that could be the difference between successful completion of probation or not,” Carver says. Even if they are able to find licit employment, they face the possibility of their pay being docked for debt accumulated as a result of crime they’ve already paid for in years behind bars.

Rather than reorient corrections policy to being less punitive, states are trying to close their budget gaps by being more punitive. Most states haven’t compared the cost of debt collection or reincarceration to the debts themselves, and in many cases, the cost of incarceration is greater than the fee not being paid. In a recent study, the American Civil Liberties Union identified a man in Louisiana who was sent to prison for five months for failing to pay $498 in legal fees. At the cost of $22.39 per day, his stay in the New Orleans Parish Prison ended up costing the state more than six times what he owed. Poor people who haven’t committed crimes may also face legal fees and find themselves locked up for an inability to pay their debt—but in the case of the formerly incarcerated, these fees directly undermine states’

investment in re-entry. This is particularly unfortunate for New Orleans, given Republican Gov. Bobby Jindal’s commitment to pre-release job-training programs in local and parish jails.

“States across the country are doing this in the face of mounting budget deficits, but there’s no assessment on the other side to see if this is actually costing the state more to collect these debts and incarcerate people,” explains Vanita Gupta of the ACLU. “We are incarcerating people for their poverty.”

The fiscal side of corrections policy is important. States should be utilizing the most cost-effective ways of reducing their prison populations without compromising public safety through alternatives to incarceration for nonviolent offenders, parole and probation systems that provide swift and certain punishment, moderately reduced sentences, and re-entry programs that are proven to reduce recidivism. But trying to plug budget holes with “user fees” undermines any investment in increasing public safety by reducing recidivism.

“When you get an individual who after taxes is bringing home say, 150 bucks a week, if what they’re left with is $600 at the end of the month, that doesn’t go anywhere, Carver says. “It makes it very difficult for folks to succeed.” tap the american prospect

a 17

Education Vs. Incarceration More money must go to schools than to prisons before high-crime neighborhoods can truly be reformed.

by Stev en Hawkins

S

ince 1980, the U.S. prison population has grown exponentially, expanding from approximately 500,000 to 2.3 million people in just three decades. America now has the dubious distinction of leading the world in prison population: We account for 25 percent of all prisoners but only 5 percent of the global population. Our penchant for punishment has come at a cost.

We spend almost $70 billion annually to place adults in prison and jails, to confine youth in detention centers, and to supervise 7.3 million individuals on probation and parole. Indeed, confinement costs have claimed an increasing share of state and local government spending.

This trend has starved essential social programs—most notably education.

Nearly 75 percent of imprisonment spending happens at the state level, where dollars are drawn from a general fund that is meant to pay for a range of public needs, including health care, housing, public assistance, and education. Whether we look back over the last two decades, or just the last two years, education, in particular, has become a casualty of state budget battles. Analysis by the National Association of State Budget Officers shows that elementary and high schools receive 73 percent of their state funding from this discretionary fund; colleges and universities count on the fund for half of their budgets. However, $9 out of every $10 that support imprisonment come from the same pot of money. With tens of billions of dollars in prison spending annually, states are finding that there is simply less discretionary money available to invest in education, especially in these lean economic times.

Indeed, as the economic downturn limited all state spending in the fiscal a 18 j a n u a r y / f e b r u a r y 2 0 1 1

year 2008–2009, the share of generalfund money going to incarceration grew as expenditures in every other category­— save public assistance—declined. States still spend more of their general-fund dollars on education than on incarceration, but the percentage of dollars being used for incarceration is increasing, while the percentage for education is decreasing.

In 33 of 50 states, corrections-­related costs made up a larger proportion of the general fund than in the previous fiscal year, while spending on K-12 and higher education decreased.

The federal stimulus, no doubt, helped states find money to pay for both prisons and other basic state services as tax revenue eroded. When future budget years arrive, however, and states and counties try to balance their books without the assistance of the federal stimulus, young

were coming from a few select neighborhoods—primarily poor communities of color—in major cities. These were dubbed “million-­dollar blocks” to reflect that spending on incarceration was the predominant public-­sector investment in these neighborhoods. NAACP research shows that matching zip codes to high rates of incarceration also reveals where low-performing schools, as measured by math proficiency, tend to cluster. The lowest-performing schools tend to be in the areas where incarceration rates are the highest. The following examples are instructive.

Los Angeles. California has the largest prison population in the country, with more than 170,000 individuals behind bars. In Los Angeles, more than half of current parolees live in neighborhoods that are home to less than 20 percent of the city’s adult residents. More than a billion dollars are spent every year to incarcerate people from these communities. At the same time, as of spring 2010, the Los Angeles Unified School District was projecting a deficit of $640 million in the 2010–11 academic year. As a result, district officials were planning to raise class sizes and lay off thousands of teachers and other school-based staff.

How is school success affected by these policy choices and spending patterns? There is no definitive way to know what the previous spending cuts have meant for Los Angeles schools, but we do know that in Los Angeles, 67 percent of low-performing schools are in neighborhoods with the highest incarceration rates. By contrast, 68 percent of the city’s high-performing schools are in neighborhoods with the lowest incarceration rates.

Philadelphia. In 2009, the School District of Philadelphia faced a projected budget shortfall of $147 million, after losing $160 million in state funding. Yet, during this same period, taxpayers spent nearly $290 million to imprison residents from just 11 Philadelphia neighborhoods, home to about one-quarter of the city’s population.

Neighborhoods with lowerperforming schools tend to send more people to prison than to college. people will experience more of the same: school closings, teacher layoffs, diminished after-school programs, and rising tuition at colleges and universities. All of this will happen while prison spending grows.

This tradeoff between education and incarceration is particularly acute at the community level. In many urban neighborhoods where millions of dollars are spent to lock up residents, the education infrastructure is crippled. As the prison population skyrocketed in the past three decades, researchers began to notice that high concentrations of inmates

w w w. p ro s p ect. o rg

c r i m i n a l j u stic e r e fo r m As hundreds of millions of dollars are invested in incarcerating people from these select neighborhoods, the corresponding disinvestment in education in those neighborhoods is telling. Sixty-six percent of lower-performing schools are clustered in or very near neighborhoods with the highest rates of incarceration— where the biggest taxpayer investment in imprisonment is being made. By contrast, 75 percent of Philadelphia’s higherperforming schools are in neighborhoods with the lowest rates of incarceration.

Houston. In the 2009–2010 academic year, state budget cuts forced the Houston Independent School District to manage a projected $10 million shortfall.

However, in the preceding year, Texas spent over $175 million to imprison residents from just 10 neighborhoods in Houston. In Houston, of the six schools deemed lower-performing, five are in neighborhoods with the highest rates of incarceration. By contrast, of the 12 schools considered higher-performing, eight are in neighborhoods with the lowest incarceration rates.

What we learn from Los Angeles, Houston, and Philadelphia is that our national priorities are misplaced, and with devastating consequences. In a few select neighborhoods, the heavy investment in incarceration over education correlates with the lowest-performing schools. These neighborhoods send more individuals to prison than to college— reflecting the pattern of dollars invested.

The relationship has not yet been shown to be causal, but we do see a correlative effect between education and incarceration. If states were to properly invest in reopening schools, keeping quality teachers, maintaining sensible classroom sizes, and sustaining the affordability of higher education, it’s quite possible— particularly for economic crimes like low-level drug dealing—we would not need to imprison so many people and could stop sinking our valuable taxpayer dollars into an investment that has demonstrated scant return.

To shift our funding priorities, national and state policy-makers will have to choose cost-effective criminal-justice policies and focus on public-safety strat-

egies that curb crime and reserve more of our tax dollars for our children’s education. Gov. Arnold Schwarzenegger of California noted in his 2010 State of the State address: “Spending 45 percent more on prisons than universities is no way to proceed into the future. …

What does it say about any state that focuses more on prison uniforms than on caps and gowns?” Only when we make meaningful investments in schools—not prisons—will our nation reap the benefits through increased earnings for fami-

lies, reduced unemployment, increased tax revenues from more vibrant local economies, reduced reliance on public assistance, increased civic engagement, and improved public-­safety outcomes for neighborhoods at risk of violence and victimization. tap Steven Hawkins is executive vice president and chief program officer of the NAACP, which will be releasing a report on the impact of incarceration costs on education in early 2011.

The New Jim Crow How mass incarceration turns people of color into permanent second-class citizens

by Miche ll e Al exan der

T

he first time I encountered the idea that our criminal-justice system functions much like a racial caste system, I dismissed the notion. It was more than 10 years ago in Oakland when I was rushing to catch the bus and spotted a bright orange sign stapled to a telephone pole. It screamed in large, bold print: “The Drug War is the New Jim Crow.” I scanned the text of the flyer and then muttered something like, “Yeah, the criminal-justice system is racist in many ways, but making such an absurd comparison doesn’t help. People will just think you’re crazy.” I then hopped on the bus and headed to my new job as director of the Racial Justice Project for the American Civil Liberties Union of Northern California.

What a difference a decade makes.

After years of working on issues of racial profiling, police brutality, and drug-law enforcement in poor communities of color as well as working with former inmates struggling to “re-enter” a society that never seemed to have much use for them, I began to suspect that I was wrong about the criminal-justice system. It was not just another institution infected with

racial bias but a different beast entirely.

The activists who posted the sign on the telephone pole were not crazy, nor were the smattering of lawyers and advocates around the country who were beginning to connect the dots between our current system of mass incarceration and earlier forms of racial control. Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify severe inequality. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as justification for discrimination, exclusion, or social contempt. Rather, we use our criminal-­justice system to associate criminality with people of color and then engage in the prejudiced practices we supposedly left behind.

Today, it is legal to discriminate against ex-offenders in ways it was once legal to discriminate against African Americans. the american prospect

a 19

Once you’re labeled a felon, depending on the state you’re in, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

More than two million African Americans are currently under the control of the criminal-justice system—in prison or jail, on probation or parole. During the past few decades, millions more have cycled in and out of the system; indeed, nearly 70 percent of people released from prison are re-arrested within three years.

Most people appreciate that millions of African Americans were locked into a second-class status during slavery and Jim Crow, and that these earlier systems of racial control created a legacy of political, social, and economic inequality that a 20 j a n u a r y / f e b r u a r y 2 0 1 1

our nation is still struggling to overcome.

Relatively few, however, seem to appreciate that millions of African Americans are subject to a new system of control— mass incarceration—which also has a devastating effect on families and communities. The harm is greatly intensified when prisoners are released. As criminologist Jeremy Travis has observed, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”

The scale of incarceration-related discrimination is astonishing. Ex-offenders are routinely stripped of essential rights.

Current felon-disenfranchisement laws bar 13 percent of African American men from casting a vote, thus making mass incarceration an effective tool of voter suppression—one reminiscent of the poll taxes and literacy tests of the Jim Crow era. Employers routinely discriminate against an applicant based on criminal history, as do landlords. In most states, it is also legal to make ex–drug

offenders ineligible for food stamps. In some major urban areas, if you take into account prisoners—who are excluded from poverty and unemployment statistics, thus masking the severity of black disadvantage—more than half of working-­age African American men have criminal records and are thus subject to legalized discrimination for the rest of their lives. In Chicago, for instance, nearly 80 percent of working-age African American men had criminal records in 2002. These men are permanently locked into an inferior, second-class status, or caste, by law and custom.

The official explanation for this is crime rates. Our prison population increased sevenfold in less than 30 years, going from about 300,000 to more than 2 million, supposedly due to rising crime in poor communities of color.

Crime rates, however, actually have little to do with incarceration rates.

Crime rates have fluctuated during the past 30 years and today are at historical w w w. p ro s p ect. o rg

m o n i c a a l m e i d a / t h e n e w yo r k t i m e s / r e d u x

California Institution for Men, Chino, California

c r i m i n a l j u stic e r e fo r m lows, but incarceration rates have consistently soared. Most sociologists and criminologists today will acknowledge that crime rates and incarceration rates have moved independently of each other; incarceration rates have skyrocketed regardless of whether crime has gone up or down in any particular community or in the nation as a whole.

What caused the unprecedented explosion in our prison population? It turns out that the activists who posted the sign on the telephone pole were right: The “war on drugs” is the single greatest contributor to mass incarceration in the United States. Drug convictions accounted for about two-thirds of the increase in the federal prison system and more than half of the increase in the state prison system between 1985 and 2000— the period of the U.S. penal system’s most dramatic expansion.

Contrary to popular belief, the goal of this war is not to root out violent offenders or drug kingpins. In 2005, for example, four out of five drug arrests were for possession, while only one out five were for sales. A 2007 report from Sentencing Project found that most people in state prison for drug offenses had no history of violence or significant selling activity. Nearly 80 percent of the increase in drug arrests in the 1990s, when the drug war peaked, could be attributed to possession of marijuana, a substance less harmful than alcohol or tobacco and at least as prevalent in middle-class white communities and on college campuses as in poor communities of color.

The drug war, though, has been waged almost exclusively in poor communities of color, despite the fact that studies consistently indicate that people of all races use and sell illegal drugs at remarkably similar rates. This is not what one would guess by peeking inside our nation’s prisons and jails, which are overflowing with black and brown drug offenders.

In 2000, African Americans made up 80 percent to 90 percent of imprisoned drug offenders in some states.

The extraordinary racial disparities in our criminal-justice system would not exist today but for the complicity of the United States Supreme Court. In the

failed war on drugs, our Fourth Amendment protections against unreasonable searches and seizures have been eviscerated. Stop-and-frisk operations in poor communities of color are now routine; the arbitrary and discriminatory police practices the framers aimed to prevent are now commonplace. Justice Thurgood Marshall, in a strident dissent in the 1989 case of Skinner v. Railway Labor Executive Association, felt compelled to remind the Court that there is “no drug exception” to the Fourth Amendment. His reminder was in vain. The Supreme Court had begun steadily unraveling Fourth Amendment protections against stops, interrogations, and seizures in bus stops, train stations, schools, workplaces, airports, and on sidewalks in a series of cases starting in the early 1980s. These aggressive sweep tactics in poor communities of color are now as accepted as separate water fountains were several decades ago.

If the system is as rife with conscious and unconscious bias, many people often

only proof of bias is in the outcomes: how people of different races are treated. The Supreme Court, however, has ruled that no matter how severe the racial disparities, and no matter how overwhelming or compelling the statistical evidence may be, you must have proof of conscious, intentional bias to present a credible case of discrimination. In this way, the system of mass incarceration is now immunized from judicial scrutiny for racial bias, much as slavery and Jim Crow laws were once protected from constitutional challenge.

As a nation, we have managed to create a massive system of control that locks a significant percentage of our population—a group defined largely by race—into a permanent, secondclass status. This is not the fault of one political party. It is not merely the fault of biased police, prosecutors, or judges. We have all been complicit in the emergence of mass incarceration in the United States. In the so-called era of colorblindness, we have become blind not so much to race as to the re-emergence of caste in America. We have turned away from those labeled “criminals,” viewing them as “others” unworthy of our concern. Some of us have been complicit by remaining silent, even as we have a sneaking suspicion that something has gone horribly wrong.

We must break that silence and awaken to the human-rights nightmare that is occurring on our watch.

We, as a nation, can do better than this. tap

Today, it’s legal to discriminate against ex-offenders in many ways it was once legal to discriminate against African Americans. ask, why aren’t more lawsuits filed? Why not file class-action lawsuits challenging bias by the police or prosecutors? Doesn’t the 14th Amendment guarantee equal protection of the law?

What many don’t realize is that the Supreme Court has ruled that in the absence of conscious, intentional bias— tantamount to an admission or a racial slur—you can’t present allegations of race discrimination in the criminal-­justice system. These rulings have created a nearly insurmountable hurdle, as law­enforcement officials know better than to admit racial bias out loud, and much of the discrimination that pervades this system is rooted in unconscious racial stereotypes, or “hunches” about certain types of people that come down to race. Because these biases operate unconsciously, the

Michelle Alexander is an associate professor at the Moritz College of Law at Ohio State University and author of The New Jim Crow: Mass Incarceration in an Age of Colorblindness. This article was adapted from a speech delivered at Constitution Day, an event hosted by the Constitution Project and the Georgetown Center on National Security and the Law on Sept. 17, 2010. Copyright © 2010 by Michelle Alexander, reprinted here with permission. the american prospect

a 21

Bipartisan Justice Fixing America’s punitive penal system has politicians crossing party lines.

by Kara Gotsch

M

oments before landmark legislation to reduce prison sentences for low-level crack-cocaine offenses passed the House of Representatives in July, Rep. Lamar Smith, a Republican from Texas, issued a warning to the chamber: “The Democratic Party teeters on the edge of becoming the face of deficits, drugs, and job destruction.”

Smith hoped to play into the Democrats’ decades-old fear that politicians who don’t endorse tough punishments lose elections. As it turned out, Smith was the only member to speak in opposition to the bill in either the House or Senate.

When Smith finished, some of his Republican colleagues, including James Sensenbrenner of Wisconsin and Dan Lungren of California, both prominent members of the House Judiciary Committee and hardly “soft on crime,” addressed the chamber. They joined members of the Congressional Black Caucus in endorsing the legislation.

Libertarian-leaning Ron Paul also supported the bill, even arguing the reform was weaker than he had wanted.

The Fair Sentencing Act was signed into law by President Barack Obama in August. The bill reduced the quantity­based sentencing disparity between crack cocaine and powder cocaine from 100 to one to 18 to one and eliminated the five-year mandatory minimum sentence for first-time possession of 5 grams of crack cocaine. The sentencing minimum for selling crack cocaine is now triggered when a defendant has at least 28 grams of the drug.

That Smith stood alone shows how much the political climate has shifted since the 1980s and 1990s, when Republicans and Democrats both argued that lengthy prison sentences were critical to stopping drug use and limiting crime. a 22 j a n u a r y / f e b r u a r y 2 0 1 1

The harsh Anti-Drug Abuse Acts of 1986 and 1988, which created the sentencing disparity between crack and powder cocaine and the stiff mandatory minimums associated with possession of crack cocaine, were enacted at a time of hysteria about drugs and crime. Two decades later, both parties agree that crack-cocaine sentences were excessive, disproportionately affected African Americans, and unfairly punished low-level crack-cocaine offenses. What led to such significant change?

In the 1980s, the emergence of lowcost crack cocaine in urban neighborhoods and the violent turf wars associated with its sale frightened the public. News accounts warned that crack cocaine was instantly addictive and that a generation of children born to addicted mothers would be permanently brain damaged and become a societal burden.

The response to these reports was almost entirely punitive and investments in prevention and treatment were limited.

At the federal level, Congress intended to use long mandatory sentences to nab drug kingpins and traffickers. Yet, particularly in the case of crack-cocaine offenses, defendants who became entangled in the system were low-level street sellers, couriers, and lookouts. Because the possession quantity that triggered a mandatory sentence was set so low, law enforcement and prosecutors focused on racking up convictions had little incentive to go after the more challenging cases involving drugs trafficked across state lines or into the country.

Over the next decade, political leaders of both parties exploited the public’s fear of crime and drug use at election time. Democratic presidential nominee Michael Dukakis was tarred as “soft on crime” by then–Vice President George

H.W. Bush in their 1988 contest when the Bush campaign aired a television ad revealing that Dukakis, as governor of Massachusetts, had supported a weekend furlough program for prisoners. Convicted felon Willie Horton never returned from his furlough; he committed a horrific rape less than a year later. In 1992, then-Gov. Bill Clinton eagerly tried to convince voters that he would be tougher on crime and left the presidential campaign trail to oversee an execution in Arkansas, his home state.

In 1994, the Clinton administration and the Democratic Congress passed an omnibus crime bill, which contained $8 billion for building new prisons and also included fiscal incentives for states to adopt harsh sentencing laws.

This happened despite the fact that crime rates had already begun a downward trajectory in the early 1990s, one that continues today. Once this trend became more visible, there was less political advantage to attacking an opponent’s record on criminal-justice issues. This dynamic helped create political space for the Department of Justice under Attorney General Janet Reno to spearhead an initiative that began to consider how the many prisoners sentenced under the drug laws might re-enter society. In late 1999, the administration provided seed money to a few communities interested in developing “re-entry courts.” It also launched a partnership program in five jurisdictions, pairing police, corrections officials, and community stakeholders in order to improve the re-entry process and reduce recidivism. The approach was later embraced by President George W. Bush.

In a 2004 State of the Union address, he proposed a $300 million initiative to assist people released from prison.

“America is the land of second chances, and when the gates of prison open, the path ahead should lead to a better life,” Bush said. The unexpected comment launched a legislative campaign to enact bipartisan legislation to aid state and local governments in providing job training, education, drug treatment, and mentoring services for offenders exiting prisons and jails. An unlikely coalition formed between Congressional Black w w w. p ro s p ect. o rg

c r i m i n a l j u stic e r e fo r m tion to stopping the cycle of crime. This political awakening was brought on by multiple factors, but the legislative strategies employed by the reform community were a critical element. The coalition that came together prioritized diversity and bipartisanship among its partners. Prisoner-rights organizations, corrections agencies, progressive and conservative faith groups, and law enforcement mobiInterested Parties: Sen. Jim Webb (right) and Sen. Orrin Hatch lized their constituents to (left) discuss the National Criminal Justice Commission Act at a pressure Congress. With news conference in March 2010. the bill’s passage, a new Caucus members Danny Davis of Illi- consensus emerged that not every crime nois and Bobby Scott of Virginia, both problem can or should be addressed with Democrats, and conservative Republi- longer prison sentences.

The fiscal crisis has also led to biparticans Rob Portman of Ohio, Chris Cannon of Utah, Lamar Smith of Texas, and sanship in prison and sentencing reform.

Howard Coble of North Carolina. The The historic incarceration rate, driven effort received broad support from law by the 40-year “war on drugs” and harsh enforcement, criminal-justice reformers, and the religious community.

Prison Fellowship, a Christian ministry organization founded by former Nixon official Chuck Colson after he was released from prison for a Watergate­related conviction, played a pivotal role in defining the legislative debate on reform. Colson and Pat Nolan, the organization’s vice president and a former California state assemblyman who served mandatory minimum sentences, now a 33-month term for a corruption charge, costs taxpayers more than $60 billion a argued that the bill was a moral obliga- year. Severe budget constraints are forcing tion for conservative Christian members states around the country to experiment of Congress. Jesus would not have turned with early-release programs and incaraway from the plight of prisoners, they ceration alternatives. This year, Gov. Mark said. Ultraconservative evangelical Sen. Sanford of South Carolina, a Republican, Sam Brownback, the legislation’s lead endorsed sentencing reform, including the sponsor in the Senate, pushed his fellow elimination of the state’s sentencing disRepublicans to support the bill. In 2008, parity between crack and powder cocaine.

President Bush signed the Second Chance Meanwhile, Democrats in New York disAct, which authorized $165 million for mantled the draconian Rockefeller Drug each of two years to fund re-entry ser- Laws first passed in the 1970s, which disvices. Since then, however, funding has proportionately affected racial and ethnic consistently fallen short of that amount. minorities and handed out extreme senThe Second Chance Act was precedent- tences for low-level drug offenses. In 2009, setting: It established bipartisan agree- for the first time in nearly 40 years, overall ment that the justice system was flawed state incarceration levels declined. and plainly asserted that investment in Last year, Sen. Jim Webb, a modersocial programs is a fundamental solu- ate Democrat from Virginia, introduced

legislation to study the nation’s criminal­justice system for the first time since 1965.

The legislation attracted bipartisan cosponsorship from Republican Sens. Lindsey Graham and Orrin Hatch, which was particularly notable since Webb publicly argued that the country’s incarceration rate is too high. The bill passed in the House of Representatives without opposition and moved by voice vote through the Senate Judiciary Committee.

Despite these encouraging developments, it’s unclear whether reform will sustain its current momentum. As of this writing, the full Senate had not voted on Webb’s bill. And while the economic crisis has provided an opportunity to promote sentencing reforms, it has also dampened enthusiasm for investing in prevention and re-entry, particularly among Republicans.

For fiscal year 2011, the Senate Appropriations Committee recommended slashing more than 50 percent in spending for Second Chance Act programs. The act also expired in September and has not yet been reauthorized. Congressional Republicans and Democrats say they are committed to the bill’s renewal in 2011, but insiders believe authorized funding levels may decline.

Many states that quickly took up re-entry when new federal dollars were available may soon lose their enthusiasm if the funding disappears.

While criminal-justice reform has made tremendous progress in the past decade, we need to move aggressively to protect innovative programs and funding that have charted a new course. If current trends continue, one in three black males and one in six Latino males born today will do time in prison at some point during their life. To ensure that doesn’t happen, unlikely allies must continue to work together. It took consensus to create this mess, and it will take the same bipartisanship to get us out of it. tap

m a n u e l b a lc e c e n e ta / a p i m a g e s

Members of both parties agree that investing in social programs is part of the solution to stopping the cycle of crime.

Kara Gotsch is director of advocacy for the Sentencing Project, a national research and advocacy organization working for a fair and effective criminal-­justice system. the american prospect

a 23

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