The Radical Moderate's Guide to Criminal Justice Reform
Black lives matter! Blue lives matter! Red lives matter! ALL lives matter! If we shout this with a particular cadence it sounds like a fun athletic cheer and not like one of the most divisive and complicated issues in American politics today.
The reality is that whatever side we're on, almost everyone recognizes that our system is pretty broken, both in terms of how citizens interact with the criminal justice system, how that system is structured, and how it affects human flourishing. Conservatives, libertarians, and progressives all agree the system is awful, but disagree on how to fix it. This post is just a start and we'll be adding more posts on this topic in the future, but for now it provides a kind of birds' eye view of what we see going on. We're also not criminal justice experts, so if we missed something or got something wrong, let us know!
The Problem
First, whatever you might be hearing on social media or from your random Uncle Joe, our criminal justice system is radically awful. It's excessively punitive, it fails to actually reduce crime, it results in unequal outcomes, and it overwhelmingly targets the poor. Add to all that: it's wildly expensive. One expert calls it "rotten to the core."
What the debates over the merits of various hashtags like #BlackLivesMatter and #AllLivesMatter obscure is the broader reality that, whatever your political commitments, the criminal justice system in the United States violates every principle this country was founded on. It's worth taking a closer look at how.
The criminal justice system in the United States violates every principle this country was founded on.
Lest we forget (which I think we sometimes do), the United States was founded on the principle of freedom and, by extension, equal natural rights. According to our Declaration -- beloved by most everyone -- we have the rights to life, liberty, and the pursuit of happiness. Increasingly, however, those rights are fundamentally violated every day by the very government that claims to protect them. It's deeply ironic and very very depressing that the first country in the world to be founded on the Radically Moderate principles of freedom and the protection of individual rights has one of the most dysfunctional criminal justice systems in the world and one that violates individual rights of millions of people each and every day. Need proof? Let's take a brief tour of the numbers.
Despite being supposedly committed to freedom, the United States incarcerates more people than any other country in the world, both in absolute terms and per capita. Right now, over 2 million Americans are incarcerated in jails and prisons across our great land. We beat every dictatorial regime. China! Iran! Russia! This bears repeating: We take freedom away from more of our own citizens than any other country in the world. That's a depressing trophy to win.
We incarcerate people for things that no other country does. A very large percentage of our incarceration numbers come from people who are too poor to pay bail and return to their communities while waiting trial. Many of these people are arrested for nonviolent crimes or even traffic violations. Another large subset are people with mental illnesses who end up languishing in jails because they have nowhere to go and no money to post bail.
We steal our own citizens' property with almost no oversight and no legal or judicial remedy through the process of civil asset forfeiture.
We target the poor with laws that penalize being poor, with cash bail systems that keep the poor locked up just because they're poor, and with prisons that feed off poverty.
We lock people up without trials, sometimes for years at a time, often because they are too poor to bail themselves out. In Louisiana, one of the worst states for this, one study found that at least 1,300 prisoners had been held for more than four years without a trial. Let that sink in.
We lock up children and teenagers, often for years at a time, during their most developmentally crucial period, crippling their ability to become productive citizens when they return to the outside world.
We use force no other country uses, including no-knock warrants and flash bang grenades that blow up babies while they're sleeping and lethal force for those suffering from mental health crises.
We protect police, prosecutors, forensic techs, and other people in the criminal justice system from their own criminal behavior in a way no other country does, through the doctrine of qualified immunity.
Even our trial system is broken, with the Constitutional right to a jury trial all but nonexistent for most defendants.
What the Hell is Going On?
One might very well look at all these issues and wonder who benefits from such a dysfunctional system. The best explanation we have is that the entire criminal justice system comes from the interplay of perverse incentives in multiple directions.
Probably the major reason the criminal justice system is so screwed up is that it's a system of dispersed costs and concentrated benefits. What this means is that while we all pay to keep this system going, that economic cost is spread across a lot of taxpayers who can't clearly see how much of their money is going to locking people up and who also can't tell what other programs are being cut to make room for our punitive laws. Being protected from criminals seems like a decent thing to invest in and because we aren't confronted with a simple bill we can't really see what we're paying. We also rarely see the human costs of the system because most of us have little interaction with the system itself.
At the same time, there are groups of people who benefit a lot from the criminal justice system being as screwed up as it is, and it's those voices who are lobbying the hardest to keep it the way it is. Those voices include public sector unions like police unions and prison unions, states (and the federal government) who benefit financially from prison labor, corporations who benefit from prison labor and prison consumers, residents who think they benefit (but really may not) from the employment the prison in their town provides, the politicians who benefit from keeping those residents happy and who benefit politically from counting prisoners in their census, and the various other interest groups who make up what is sometimes called the "prison industrial complex." While that term sounds a bit conspiracy-theory-ish, the reality is that a lot of specific interest groups benefit from our criminal justice system while we as citizens pay the upfront tab.
But in another really crucial sense, this system of dispersed benefits and concentrated costs is where the real injustice begins. What this means is that a small number of people pay the real upfront burden of a whacked out criminal justice system, and those people are the most vulnerable among us. So the most profound injustice that's baked into the criminal justice system in the United States is that while everyone pays a fair amount to keep the system going, and small interest groups get a lot of financial benefits, there's one group that pays MOST of the costs of this system, and that's the poor.
... there's one group that pays MOST of the costs of this system,
and that's the poor.
We Radical Moderates are middle class suburbanites, and we might look around and think the situation works pretty well for us on the average day. Crime in our suburb is very low, we interact with police and the court system very rarely, when we do those interactions are usually pretty peaceful and respectful, and while we'd prefer to pay fewer taxes we're not drowning in taxation. But for the poor, which includes a higher percentage of black, indigenous and other Americans of color as well as disabled, LGBTQ, and Americans struggling with addiction and mental illness, the costs of the system are very high and the benefits are pretty low. In these communities, crime rates are pretty high, interactions with the police and courts very common, those interactions are frequently contentious and often violent, and the fines and tickets associated with those interactions completely crushing.
We've essentially taken the most vulnerable people in our society -- people of color, the poor, the mentally ill, people struggling with addiction -- and placed them all into a bucket where we say "sorry, you are going to pay the most and in the most direct and most undignified way, for the decisions we are making. You will pay the price for me to feel safe."
Which Lives Matter?
The research is clear: criminal justice in this country is terrible in general, but it disproportionately affects the most vulnerable among us, including (but not limited to) poor Americans, people of color (particularly black and indigenous people), and the mentally ill. While we don't have space here to go deep into the demographics of crime in the United States, we'll tackle the obvious issue of #BlackLivesMatter because that's where the focus has been, and for good reason.
#BlackLivesMatter activists argue that black Americans are uniquely vulnerable to interacting with the criminal justice system and those interactions are more likely to be violent. The data are clear on this. Black Americans are three times more likely to be killed by police than white Americans. While it's true that more white people are killed by police every year in absolute terms, black people are killed disproportionately to their numbers in society. This pattern starts well upstream, before lethal interactions occur, and plays out throughout the criminal justice system, with black Americans more likely to be pulled over, searched, arrested, and convicted, disproportionately to their likelihood of being involved in the crimes they're investigated for. Some of the best information we have comes from traffic stops, which are one of the primary starting points for interactions with police. Overall, black motorists are pulled over at higher rates, but are less likely to have contraband like drugs or weapons than white motorists who are similarly searched.
Black Americans are more likely to interact with police in part because they tend to live in higher crime areas (for a lot of complicated reasons) and they also tend to attract the attention of the police for a variety of complicated reasons, including skin color and poverty. Black Americans are also more likely to commit crime than white Americans, a phenomenon that likely has a lot of complex and interrelated causes, ranging from poverty to unstable communities to exposure to pollution including heavy metals like lead, among others. Black Americans are also much more likely to be victims of violent crime than white Americans, so the issue doesn't seem to be that we need less rule of law in black communities, but that we need to rethink our assumptions about what causes crime and how to fix it. We'll discuss some of the more hopeful attempts in subsequent posts, but for now we can confidently say that the evidence is pretty clear that black Americans are uniquely harmed by the criminal justice system, in complex and pretty profound ways.
Immoderate Errors at Play
Zooming back out, let's take a broader look at what's going on. Part of the problem, apart from poor incentives, is that criminal justice triggers a lot of complicated Immoderate Errors that are hard to unplug once they've been activated. We'll be talking about these in more detail in the future, but for now here's a quick rundown:
Fear: Crime of all kinds, but particularly violent crime, is very scary! And the media plays off that fear with 24/7 coverage of violent crime and shows about everyone being murdered all the time, with hero detectives and forensic techs who solve the crimes and keep us safe. The reality, of course, is that we've never lived in a safer time to be alive, particularly when it comes to violent crime, but you wouldn't know that from watching the news.
Excessive (and asymmetric) risk aversion: in a proper policing regime, those who are given the ability to carry weapons in public have a greater duty to limit the harm they do. Police should have a duty to deescalate situations precisely because they have been trusted with guns and permission to use them. Ironically, that's the opposite of what often happens, with police increasingly arguing, sometimes explicitly, that their safety matters more than the safety of the citizens they took an oath to serve and protect.
The Fundamental Attribution Error: Humans make a really fundamental error (which we'll talk about more soon) when we think about crime and the people who commit it. Namely, we assume that people who commit crimes are just Bad People, instead of people just like us caught up in really awful situations. The reality is that most people commit crimes because they're poor, don't have a lot of options, are mentally ill, or struggling with addiction. But again, the media focus on cunning psychopaths would have us believe people who commit crimes are just Very Bad People and we need to punish them and throw away the key.
Lack of Humility: Another problem is that we think we know what the solutions are, when really we don't. Crime is pretty complicated and we now know that locking people up for longer and longer periods of time doesn't do anything to reduce crime. But providing economic opportunities might. Better social services might. A more robust civil society might. Stronger family ties and greater support for families might. Reducing neurotoxins like lead and mercury in the soil and air where people live might. There are a lot of options we haven't tried because we pour so much into policing and punitive responses.
Ignoring tradeoffs: On that note, another error is that we tend to ignore the tradeoffs involved in a punitive criminal justice system. The War on Drugs might seem to make sense since Drugs Are Bad, but we also have to take into account the harms that the war itself causes (black markets, broken families, underemployment, conviction of the innocent, bystanders harmed by police force, and so on). Resources we spend on locking people up can't be spent on other things like education or addiction treatment or mental health assistance.
Entrenched interests: We've mentioned this above, but it's worth mentioning again: our criminal justice system reflects a lot of special interests who benefit from harsh policing. Benefiting the few at the expense of the many is an immoderate error and a violation of justice.
A failure of imagination: Perhaps the biggest error we're making though is burying our head in the sand in terms of the extent of the problem as well as a lack of imagination about how we could do things differently. This too is related to the reality that most of our readers are probably not involved in the criminal justice system and are unlikely to become so. Reform seems remote and complicated and we have other things to do. But Radical Moderates shouldn't ignore injustice just because it doesn't affect us directly. A community in which our fellow citizens are harassed, impoverished, and incarcerated for not very good reasons is no true community at all.
A community in which our fellow citizens are harassed, impoverished, and incarcerated for not very good reasons is no true community at all.
What's Next
While we can't get into everything that's wrong with the criminal justice system in the United States in this post, we're hoping to try to tackle some of the big issues in upcoming posts. These include:
Criminal law
It turns out it's really easy to get caught up in the criminal justice system because the U.S. has a LOT of laws, those laws are often vague and complicated, and those laws often penalize poverty instead of actually protecting people. There are also lots of really awful incentives built into the way we prosecute crimes that leave many defendants, particularly poor ones, unable to defend themselves.
Policing
It's also really easy to get caught up in the criminal justice system because the incentives of policing have changed dramatically over the past four decades. The rising power of police unions, the increasing militarization of the police, protection against civil suits and criminal prosecution granted by qualified immunity statues, and financial incentives to abuse citizens through civil asset forfeiture are all examples of how police shifted from being protectors of their fellow citizens to having a distinct and often contradictory set of interests. Even the best and most honorable police officers have a hard time making moral decisions in that framework.
Prisons
Once people end up in the criminal justice system, there are a lot of complicated ways they end up stuck inside, like a terrible maze with no exit. There's a lot of great research out there on how unfair and ineffective cash bail is, how prison profits fuel lobbying for even more criminal laws, how punitive laws keep even nonviolent offenders from restarting their lives, and how we prevent people from reintegrating with employment limits on felons. Not to mention that the way we imprison people in the U.S. is uniquely degrading and does not foster rehabilitation.
What You Can Do
Start by educating yourself and others. We can't change a system if we don't realize there's anything wrong with it. We'll be posting more resources and action items in the coming weeks and months, but these are some of our favorites to get you started.
The Cato Institute has an extensive collection of resources on criminal justice reform you can browse here.
The Sentencing Project has a great report that highlights many of the major issues at play.
The Prison Policy Initiative breaks down prison stats and provides a fuller picture of who spends time in prison and why.
The Bail Project has a ton of resources on the problem of cash bail, one of the major drivers of incarceration of people before they're even convicted.
What about you? What kinds of topics relating to criminal justice would you like to see in subsequent posts? Do you have sources you like or recommend? Suggestions for topics we missed? What reforms do you think are the most necessary? Let us know in the comments!