Fixing Our Criminal Injustice System

Two important reports released in the last two weeks point to a critical challenge facing the next president and his or her attorney general, as well as states across the nation: fixing our broken criminal justice system to serve the interests of fairness, crime prevention and rehabilitation.

First, the Pew Center on the States released a devastating report, One in 100: Behind Bars in America [1], finding that more than one in every 100 adults is now incarcerated in a US prison or jail. The numbers are 1 in 54 for men, 1 in 36 for Latino men, and 1 in 15 for African-American men.

A week later, the United Nations Committee on the Elimination of Racial Discrimination released its review [2] of U.S. compliance with an important treaty on the elimination of discrimination. The committee found that racial bias affects many U.S. systems and institutions and, particularly, our criminal justice system. The committee identified a number of concerns, including:

• That “persistent systemic inadequacies” in the appointment of lawyers for poor people accused of crimes disproportionately harms people of color;
• That young people of color are especially likely to be sentenced to life imprisonment without possibility of parole;
• That race, particularly of the victim, plays a powerful role in determining who receives the death penalty in America, according to data from the American Bar Association [http://www.abanet.org/moratorium/assessmentproject/keyfindings.doc] and others.
• That laws denying the right to vote to people with past felony convictions disproportionately disenfranchise African Americans; and
• That the lack of adequate anti-discrimination training for law enforcement officials and judges remains a persistent obstacle to the fair administration of justice.

The U.N. Committee also noted the lack of adequate U.S. systems for remedying bias. Currently, for example, there is no effective way to challenge systematic racial bias in policing, prosecution, or sentencing, because doing so generally requires proof that identifiable actors in the criminal justice system specifically intended to harm people of a particular race. But that standard of proof is not only virtually impossible to satisfy—since it requires proving someone’s subjective intentions; it also fails to address the lion’s share of unequal treatment in our justice system, which is less an intentional conspiracy and more a mounting confluence of implicit, societal, and institutional biases that lead to profoundly unjust results.

Together, these reports expose two interrelated and unacceptable trends: warehousing over rehabilitation and bias over equal justice. The priorities that should drive our justice system—crime prevention, protection of the public, and fair treatment for all—have given way to an unwise and unequal approach that the Pew Center has dubbed “prison-fits-all.”

The human and financial costs of those trends are staggering. Discrimination in our justice system violates our basic values, as well as our Constitution, and undermines the credibility and effectiveness of law enforcement in communities across the country. Investing in more prison cells instead of drug treatment and mental health services exacts untold suffering from families and neighborhoods, as well as those struggling with addiction or illness. And, ultimately, overreliance on incarceration makes us less safe, because it fails to address underlying problems and typically comes with high recidivism rates.

The financial costs are similarly daunting. Total state spending on corrections last year exceeded $49 billion, up from $12 billion in 1987. By 2011, the bill could grow by an additional $25 billion. Cash-strapped California is the national leader, at $8.8 billion last year.

As the Pew study noted, these are public funds that could go toward improving schools, health care, transportation, or other pressing needs. While spending by the states on higher education increased by 21 percent over the last 20 years, state spending on corrections increased by 127 percent.

Fortunately, both reports included recommended policy reforms that can make our criminal justice system more fair, as well as and more effective. The Pew study pointed to efforts in Texas and Kansas, for example, aimed at reducing recidivism through alternatives to incarceration for people convicted of non-violent crimes. A bipartisan effort in Texas is expanding drug treatment, changing parole practices, and using “drug courts” in which defendants who successfully complete drug treatment can avoid jail time.

After statewide polling showed that most Kansans supported programs to help people on probation succeed and avoid re-incarceration, the Legislature responded by offering grants to community corrections agencies that significantly cut parole and probation revocations; providing guidelines to judges and officers; and tracking and monitoring revocations to measure effectiveness.

The U.N. Committee also made concrete recommendations, based on promising international practices and human rights principles. The Committee called for the passage of legislation outlawing racial profiling at the federal and state levels. It urged adequate funding for public legal aid systems and improvements in the quality of representation provided to low-income defendants. It recommended further study of the causes of racial disparities in the imposition of the death penalty. It sought the discontinuation of life sentences without possibility of parole for people under the age of eighteen. And it recommended that the U.S. “review the definition of racial discrimination used in…federal and state legislation and in court practice, so as to ensure…that it prohibits racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect.”

These reports are noteworthy precisely because they identify reforms that are working around the country and globe, and that can become part of our national policy. Adapting those approaches to our needs and circumstances should be high on the priority list of a new attorney general.