Criminal Justice Reform Addressing the Core Deficits of the Criminal Justice and Legal System

INTRODUCTION

The intent behind the criminal justice system includes controlling and reducing crime to maintain public safety, retribution so that people are punished for their wrongdoings, and deterrence, by the imposition of negative sanctions in order to sway people against committing crime. Many founding philosophers have shaped how we view justice and have indelibly defined what justice and punishment is and what those concepts should entail. For example, classical theorist and enlightenment era thinker, Cesare Beccaria believed that, “[…] because people think and act rationally, they will be deterred by a certain degree of punishment, and harsher punishment beyond that is not needed” (Barkan 2015:92). Thus, today we are challenged with the task of deterring crime through punishment, but doing so in a manner that exceeds what is necessary. Today, we have failed the ideals of theorists like Beccaria.

It appears as though in our pursuit toward a more just system, we have instead formed a criminal justice system that is wrought with deficiencies. Some of these shortcomings include, overpopulated prisons, a broken judicial system that inclines defendants, both innocent and guilty alike, to choose plea deals, the over-incarceration of nonviolent drug offenders, poor prison conditions, and high rates of recidivism.

Notwithstanding the vast issues facing all facets of the American Penal System, there are policies we can implement to combat these issues. A few steps toward effective policies include legalizing or decriminalizing marijuana use and lessening sentences for drug crimes can help alleviate mass incarceration. Additionally, treating mental illness outside of the criminal system may help to mitigate mass incarceration as well. Improving prison conditions and better preparing inmates for life after will help reduce recidivism rates, and comprehensive bail reform in all states will ensure that vulnerable populations such as the poor are treated more equitably.

LITERATURE REVIEW

Reviewing current statistics allows us to keep the state of criminal justice issues in perspective. According to Gramlich (30 January 2018), violent crime in the United States has drastically declined over the past twenty-five years. It is also worth noting that in 2016, the incarceration rate in the United States dropped from its peak of 2.3 million in 2008 to 2.2 million, its lowest in twenty years (Gramlich May 2018). Gramlich (May 2018) asserts that this drop may be attributed to the decline in violent crime, along with changes in prosecution, judicial patterns, and changes to criminal law.

These statistics, although accurate, can give us a false sense of comfort in that the prison population has declined, however the fact still remains that even with a total prison population of 2.2 million, the United States still has a significant prison issue. Specifically, the United States makes up five percent of the world’s population, but has about twenty-five of the world’s prison population (Collier 2014). This means that the United States has a higher imprisonment rate than some of the world’s most brutal authoritarian regimes.

Additionally, there are clear racial and socio-economic implications that indicate minorities are disproportionately, negatively affect black bodies and other minorities. In regard to race, racial differences in incarceration rates are narrowing, however, blacks still account for thirty-three percent of sentenced inmates (Gramlich 12 January 2018). While there have been some changes, the fact remains that it will take some time to undo the long-term implications that a criminal record has on ex-offenders. Collectively, society has more work to do towards mitigating these disparaging realities. While numbers may change, the fact remains that our system has become more punitive and less rehabilitative.

Perhaps no recent case outlines some of the many issues listed above as much as the story of Kalief Browder. Gonnerman (2014) was the journalist to break the story. Gonnerman (2014) explains that on or about May 15, 2010, then sixteen -year-old Kalief Browder was arrested with his friend in connection to a robbery (a backpack), after leaving a party in the Bronx. That night, Browder was searched by the police and although they did not find anything and Browder maintained his innocence, the two were arrested and taken to the Forty-eighth Precinct and questioned (Gonnerman 2014). According to Gonnerman (2014), Browder was interrogated seventeen hours later by an officer and prosecutor. Following the event Browder had a court hearing and was told that he was being charged with robbery, grand larceny, and assault (Gonnerman 2014). Next, according to Gonnerman (2014) Browder was held on $3,000 bail, which neither he nor his family could afford.

Truly the details I have outlined do not exhaust the injustices and inhumane conditions Browder was subjected to at the hands of Rikers Island and by the Court System. Ultimately Browder’s case was dismissed, but only after being held on Rikers Island for 3 ½ years (Gonnerman 2014). To name some of the horrors, Browder spent upwards of a thousand days in solitary confinement and he suffered severe mental issues as a result (Gonnerman 2014). Further, he was forced to fight or be beaten by other inmates and did not have protection from guards. In regard to the Court System, Browder had countless adjournments on the case in the prosecutions attempt to stall in order to find the alleged victim that was in Mexico at the time (Gonnerman 2014).

Further, according to Gonnerman (2014), after being released Browder tried to reclaim his life, even finding work and attending community college, however he faced violence in his home neighborhood and eventually succumb to his mental health illness via suicide after the article was written.

Stories like that of Kalief Browder occur often, but go unheard. One reason his story was sensationalized and aired as a documentary on Netflix is because like many people familiar with his case have commented, his story is an example of everything that can go wrong in the criminal justice system all in one. It is often only through grassroots initiatives or media sensitization that the general population is made aware of the horrors of what actually goes on in some of the country’s worse prisons. Therefore, media can have an important role in criminal justice reform by making the public aware of conditions that are usually hidden. However, efforts are often met with polices that keep reporters away. Huber argues that, “[m]edia access policies are important not only because they have an effect on who is allowed inside prisons, but also because of what goes on outside prisons” (Huber 2017:247). Here, he argues:

[m]edia access policies that restrict face-to-face inmate interviews are unconstitutional because (1) there are no viable alternative forms of communication, (2) media access policies are not neutral, and (3) there is no “big wheel” problem. Prison restrictions do not operate in a neutral fashion, and instead seek to censor the content of expression; media access restrictions do not fall within the “appropriate rules and regulations” to which “prisoners necessarily are subject” and, instead, abridge inmates’ First Amendment rights (Hubert 2017:272).

Here, Huber (2017) suggests that the protection of the First Amendment needs to be applied to investigative journalism in order to expose the shortcomings of our prisons so that we can do something about it. Unless we deal with the plights plaguing the criminal justice system, we will continue to hear about more people who had similar experiences to Kalief Browder.

In addition to exposing these issues through investigative journalism, I submit that that if we focus on these core issues: drug laws, bail reform, poor prison conditions and mental illness, and recidivism, we will not only begin to see a more equitable system, but we will also have a system that is more effective in fulfilling some of its founding goals, including and perhaps most importantly, deterrence.

DRUG LAWS

Drug laws should be amended to legalize or in the least decriminalize nonviolent drug offenses such as marijuana use. According to The Federal Bureau of Prisons (2018), 46% of those incarcerated are there on drug offenses. I argue that since many prisons are already overcrowded, we can begin to drastically reduce the number of those incarcerated by legalizing or at least decriminalizing certain drug offenses. Additionally, by allowing states to have control over drugs such as marijuana, they can then tax it and use that money for public services.

Additionally, we must look at what can happen when we place nonviolent offenders who have committed victimless crimes in the same place as violent offenders. According to Albert Bandura’s Social Learning Theory of Aggression, people tend to learn violence and it is learned based on exposure in their environment (Barkan 2015:154). Thus, if someone who was once nonviolent is put into a situation where violence is normalized and sometimes even necessary for survival, they are more likely to learn those norms and continue those acts that are considered deviant to the rest of the population once they are released. This creates the potential for more crime. Therefore, amending drug laws can help reduce overcrowded prisons by keeping nonviolent drug offenders out of prison in the beginning and it may help reduce the recidivism rate.

BAIL REFORM

According to the Bureau of Justice Assistance as part of the U.S. Department of Justice, between 90-95% of criminal cases are resolved through plea bargaining (Devers 2011:1). In a cash bail system and a judicial system where the wealthy can afford better attorneys, many defendants choose to plead guilty instead of going to trial even if they are innocent to avoid the potential of a lengthy sentence or penalty or to be temporarily released. The story of Kalief Browder is similar, except because he refused to admit guilt and maintained his innocence on principle, he suffered greatly. Many others in his situation choose to plea out even if they are innocent.

Luckily, efforts have been made to address the issue of bail. For example, On January 1, New Jersey largely got rid of monetary bail and replaced it with a new bail reform based on a Public Safety Assessment (PSA) (Grant 2017:1). The Criminal Justice Reform (CJR), has, in pertinent part:

(a) dramatically transformed the process for making pretrial release decisions, (b) implemented pretrial monitoring through the newly-formed Pretrial Services Program, (c) created procedures and electronic tools necessary to enforce the speedy trial timeframes established by statute, and (d) developed overall technological solutions, including automation and rapid electronic dissemination of information, to efficiently process criminal cases in our state (Grant 2017:1).

This new system attempts to administer justice in a more equitable way that does not disadvantage the poor, by focusing on factors such as public safety, whether or not defendant is likely to reoffend, defendant’s ties to the community, and whether or not defendants are likely to show up for court proceedings. However, the system is not without flaws. The report also indicates that revenue for the fiscal year declined 2.4% below the previous year, defendants need access to resources to treat substance abuse, mental illness and to gain housing; and the cost of monitoring is too expensive (Grant 2018:5). Despite the apparent flaws with the Criminal Justice Reform, this is a new program and it may take some time and readjustments in its implementation before it functions smoothly.

PRISON CONDITIONS & MENTAL ILLNESS

Many people who encounter the criminal justice system are simply mentally ill and because of the gaps in other social institutions such as affordable healthcare, they often get involved in criminal behavior and some even self-medicate with drug use. Further, once incarcerated, the nature of prisons tend to exacerbate mental illness, not much unlike Kalief Browder who suffered PTSD and other conditions after his experience at Rikers Island. Some likely causes of this include overcrowding, solitary confinement, a lack of fulfilling everyday tasks, a lack of close relationships and a lack of comprehensive mental health care within prison facilitates. Therefore, it is in our best interest as a society to make efforts to improve prison conditions and to provide rehabilitative tools for prisoners so that they can be healthy, functioning and contributing members of society once released.

RECIDIVISM

The ultimate goal of the criminal justice system is arguably to deter criminals and to stop crime. However, I argue that since the prison system is largely not rehabilitative in its current state, it creates an ironic cycle wherein individuals are more likely to reoffend after punishment. In fact, according to the Bureau of Justice Statistics, “[f]ive in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once in the 9 years following their release” (Alper et al. 2018:1). There are many theories that try to explain the phenomena, but literature suggests that economics play a significant role.

Robert K. Merton’s Strain Theory or Theory of Anomie suggests that when there is a disconnect between the goals of society and a means to achieve it, that disconnection leads to deviant behavior (Merton 1938). We can apply the strain theory to an ex-convict who was recently release. For instance, when an ex-convict does not gain proper training in order to make them hirable while incarcerated and when employers do not want to hire them, they are faced with the challenge of finding gainful employment in order to survive, but not being able to find any work to sustain themselves. As a result, some turn to crime.

Sociological research compliments this theory by providing a concrete example of how this works. Devah Pager (2003) created an audit study to find out the employment implications that mass incarceration has on black and white men. Specifically:

The basic design of this study involves the use of four male auditors (also called testers), two blacks and two whites. The testers were paired by race; . . . the two black testers formed one team, and the two white testers formed the second team. The testers were 23-year-old college students from Milwaukee who were matched on the basis of physical appearance and general style of self-presentation. Objective characteristics that were not already identical between the pairs—such as educational attainment and work experience—were made similar for the purpose of the applications. Within each team, one auditor was randomly assigned a “criminal record” for the first week; the pair then rotated which member presented himself as the ex-offender of each successive week of employment searches, such that each tester severed in the criminal record condition for an equal number of cases. (Pager 2003: 946-947).

The testers then audited 350 employers by interviewing for open positions.

In regard to race, Pager (2003) found that, “Blacks are less than half as likely to receive consideration by employers, relative to their white counterparts, and black nonoffeners fall behind even whites with prior felony convictions (Pager 2003:960)”. Here, we see this circular pattern in which blacks are both more likely to be incarcerated and are then more likely to be denied employment regardless of any past criminality.

Other sociologists have observed the racial undertones of the criminal justice system. Specifically, Alexander (2010) studied the historical parallels between the implications of slavery and mass incarceration. She found six core parallels: legalized discrimination, political disenfranchisement, jury exclusion, closing court doors, racial segregation, and the symbolic production of race. Alexander (2010) asserts that the shift from Reconstruction era to the Jim Crow era mirrors that of the shift to mass incarceration in which blacks are solidified as subordinate citizens, thus forming “The New Jim Crow,” where blacks are prevented from fully integrating into society after imprisonment. First, Alexander (2010) explains how legalized discrimination is a mechanism used in order to discriminate against blacks. Next, according to (Alexander 2010) political disenfranchisement suppresses black voters who have criminal records. Similarly, closing court doors refers to the colorblindness embedded in the law where because law is written in race-neutral language, it is often difficult to properly argue unfair laws that have clear negative racial implications (Alexander 2010). Finally, in regard to symbolic production of race, the black body is objectified and becomes associated with negative traits inherent criminality; these negative perceptions help justify over incarceration (Alexander 2010). Similarly, in addition to increasing race and class inequalities in incarceration, mass imprisonment may mark a basic change in the character of young adulthood among low-education black men” (Pettit and Western 2004:154). Further, Pettit and Western (2004) found that black men were incarcerated at such a high rate, that it became a part of a life course. From (Alexander 2010) and Pettit and Western (2004), we can see that race-neutral policies have very tangible outcomes that alter the life course for black bodies.

Despite the deeply embedded cyclical nature of recidivism, there are ways to mitigate recidivism rates. Many of these problems and solutions have been viewed from a sociological perspective, but we can and should branch out to other related fields for insight. For example, we can also rely on the work of psychologists who also have concrete solutions. Specifically, Andrews and Bonta (2010) assert that efforts to reduce crime and to deter criminals should focus on rehabilitation of offenders rather than implementing more severe punitive measures. Specifically, “[their] underlying approach suggests that crime prevention efforts that ignore, dismiss, or are unaware of the psychology of human behavior are likely to underperform in regard to successful crime prevention” (Andrews&Bonta: 40). Instead, they advocate for cognitive social learning and counseling to help reduce the chances of ex-convicts reoffending (Andrews & Bonta). In addition to behavior changes, policies can be implemented to address race-neutral laws that have tangible racial implications.

DISCUSSION & CONCLUSION

Based on the data, it is clear that if we attack the core issues plaguing the criminal justice system, namely drug laws, bail reform, poor prison conditions and mental illness, and recidivism, we can begin to make improvements in crime reduction. This is no simple task because many of the issues have a reflexive relationship. For instance, initial incarceration makes it more likely for someone to reoffend and end up incarcerated again. The mentally ill people who are untreated have a higher chance of being incarcerated and we know that incarceration can exacerbate mental illness. However, the key is that we start somewhere. Just like with New Jersey’s Criminal Justice Reform, it may not be a perfect system, but it is a start and it can lead to even more effective changes. Through continued efforts to push new public policy to mitigate the racial implications in race-neutral policies, grassroots organizations and social entrepreneurship business models such as companies who hire ex-convicts, perhaps we can continue to better our criminal justice system one small step at a time.

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