It is hard to get your head around issues that don’t directly affect you or the people in your social circle. So, let’s try a thought experiment. Imagine you are a typical family with a few children, one a teenager and one several years younger. Then, imagine that your wages hardly allow you to get by even with a few jobs and careful management of your income. Then, consider how much you can pay for rent and where you are able to live. And, then let’s say that your choices are constrained by your need to live close to transportation and to members of your family. And, finally, let’s suggest that you are living in a high crime neighborhood, not out of choice but from lack of choice. This fact has some startling implications. One, that your life just getting around the streets could be dangerous. Your chances of being the victim of a serious crime are high, not because of your behavior but because of your location. Second, is that because you are in a high crime neighborhood, police may assume that you are a criminal so you will be the object of aggressive policing. These sort of life experiences can be deeply alienating. Your view of law enforcement—the first-hand picture of state authority—for many of our citizens is complicated. The police seem powerless to get the truly bad actors, evidenced by the declining homicide clearance rates in many of our communities, and they seem to wield too much power to intervene in and interrupt the lives of law-abiding citizens. Then, finally, imagine helping your children to understand how to navigate this world and consider how, as well, to have them embrace the idea of hope in their futures and faith in the system. (Elijah’s Anderson ethnography presents a masterful picture of these challenges.) If you can imagine all of that, then you can come to see the other side of mass incarceration and how it works on a smaller more human scale.
A few years ago, I published an article on the relationship between race, gender and mass incarceration (Enos 2012). I argued in that essay that the regime of mass incarceration had been especially harsh on poor women of color. Using incarceration as the only tool in our toolbox applied a hammer to problems that were more appropriately in the domain of mental health care, substance abuse treatment, social and economic supports and community care. Many researchers have provided careful analyses of the roots and branches of mass incarceration, perhaps the best-known Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), a damning indictment of the movement to mass incarceration in the United States. The New Jim Crow has sparked an important discussion and more significantly, the beginnings of an important movement that not only incites the usual suspects—liberal politicians, civil rights attorneys–but also Republican and conservative stalwarts like Americans for Tax Reform and some elements of the Tea Party.
If Alexander’s book tells the tale of an overreaching, aggressive ever expanding net of criminal justice intervention that captures many poor men and women of color, Jill Leovy’s Ghettoside: A True Story of Murder in America (2015) tells another side of this story. Her careful and compelling study of homicide set in Los Angeles reveals that the clearance rate for homicide in poor communities of color is less than one of out three. If you are unfamiliar with the technical term, the FBI deems a case is cleared when an arrest has been made for an offense or when it is otherwise solved. Meaning that fewer that one of three homicides of black victims in Los Angeles has been solved. There are similar data in other communities. In Providence, RI, of over 110 homicides committed in the period 2000 to 2013, 43% are unsolved. This reflects a national trend. In 1961, 91% of all homicides cases were cleared; forty years later, the clearance rate had plummeted to 62%. This is not because the murder rate is so much higher that the police are not able to get to this work because of an outsized rate of homicide. The number of homicides has fallen. So, as a character in a crime drama might ask, “So, Sargeant, what’s up with that?” What has broken in our system? Why is harder to solve crimes? And, it should be noted that the clearance rates for other index crimes—assaults, robberies–are typically even lower. And, as tragic as these rates are for the larger community, they are worse for black men and communities of color. Like so many of the statistics about race and criminal justice, these data are absolutely and amazingly stunning if we could imagine them in stable middle class communities. We would have overthrown the government, gotten an attorney, filed a civil action, or most likely, voted with our feet, and taken ourselves, our families and our futures somewhere far away. How can it be that law enforcement both over-police and under-police inner city neighborhoods? It is indeed a special dynamic.
As I have written elsewhere, it truly takes a village to incarcerate millions of our citizens. All hands needed to be on deck for this movement to have been as successful as it has been, not just those in the criminal justice system–law enforcement, courts and corrections–but well beyond that to politics, media, entertainment, employment, credit, education and more. And as Alexander notes, to make the whole thing work–to go from a prison population which was relatively stable for decades to doubling, tripling and those numbers, requires a great social ignorance, an inclination to look the other way. The graph compiled from Bureau of Justice statistics shows incarceration rate, which takes into account changes in the size of the population. As can be readily seen, the variation in incarceration rate from the decades beginning in 1925 and extending to 1975 is small compared to the acceleration in the growth curve beginning in 1975 and continuing a steep climb thereafter. These numbers don’t include inmates held in local jails; neither do they count young offenders help in juvenile detention facilities.
For mass incarceration to have succeeded, the usual systems of checks and balances on excessive power needed to be rolled back or rendered ineffective by the failure of the other branches of government to exercise corrective power So, the Supreme Court needed to support a strict crime control philosophy and reduce its concern about due protections which it did in a series of decisions. State legislatures, eager to find money to support the prison boom and the increasing costs of court processing and detention have passed these off to those who are targets of the system through fines, court fees and other assessments that can drive those charged with crimes into deeper holes–financial and spiritual. A recent suit filed in Ferguson MO highlights some of these abuses. Aggressive policing with stop and frisk policies has been credited with reducing street crimes but these are overwhelmingly put in place in poor minority communities casting too wide a net on law abiding citizens and turning residents into suspects by virtue of their addresses.
The role of these developments—court decisions, the imposition of fines and fees, targeted policing strategies—has all been well documented. There has been some coverage of miscarriages of justice where innocent defendants are finally released, some with state-funded compensation and others who have to file suits to get restitution. We could expect in a system as large as our criminal justice system that mistakes would be made. One in four Americans has an arrest record. We spend $70 billion on corrections alone. The criminal justice “system” is not really a system-each part has a different reporting path. The parts are in some instances adversarial and even worse for defendants, sometimes too friendly with each other. The system and its actors has little interest in what happens in other parts of the system so evaluating whether our policies work well rest on questionable measures–the number of arrests, the number of people in prison, caseloads. If our automotive industry worked in same fashion, we would be counting how many carburetors, drive trains and tires were manufactured, rather than examining the safety, fuel economy and features of our cars.
As we think about problems in this complicated system, it is important to distinguish individual errors from systemic failures. The former may be caused by human errors; the latter are errors that lend themselves to correcting through policies and legislation. What makes the U.S. situation even more interesting is the fact that most criminal justice is done close to home. What I mean by this is we have a fifty-state experiment in criminal justice. We see wide disparities in incarceration and sentencing to rates, in how defense counsel is provided, in rates of return to prison, in the discretion given to judges, in policies to fight street crime from city to city. So, we have lots of ways to make mistakes and great opportunities to do better, especially at this time in our history when increasing number of thinkers and law makers are facing the cold hard facts that we have been running down a bad path for way too long at great expense. If we were getting great results, that would be one argument for staying the mass incarceration path but the truth is that those results have been disastrous for many individuals, many families and many communities.
What’s to be done?
This is an auspicious time in criminal justice. Proposals for reform are being advanced from many sectors—law makers, the bar associations, advocates, community leaders, think tanks. It seems that no one is for mass incarceration any more.
What I would suggest is that we understand the criminal justice as if it really were a system. We need to examine each step and stage and think about all the implications that flow from point of determination and discretion. We need to map out the implications for the people caught in the system—not just in criminal justice—but way beyond. We know that having an arrest record follows as individual like a dark cloud, shutting doors and closing out opportunity. We know that fines and fees disable our neediest citizens and fund public institutions on their backs. We know that long sentences don’t correct any more than do shorter terms in prison. We know all this and more. What I suggesting here is that “fixes” need to be systemic and courageous. We can tweak reforms but those adjustments may not be enough to reassure the family we left in the first paragraph that their streets will be safe even though they are poor.
In an essay that will follow this one, I will investigate sources of error in the criminal justice system. Some are related to police procedure; some to prosecution; others to forensic science or what passes as “science.” I will trace the work of the Innocence Project and assess recent court rulings on the assuring that those who are responsible for miscarriages of justice might be held accountable.It is important to consider how much error we tolerate in our criminal justice system as a society that embraces standards of justice in process and outcome.