The Imperfect System. important to recognize the many levels of organization that make up this complex

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1 Levi Stein Renee Captor PAF 431: Criminal Justice System 28 April 2013 The Imperfect System To best understand the criminal justice system here in the United States, it s important to recognize the many levels of organization that make up this complex structure. According to WiseGeek.com, the criminal justice system refers to the court system, the prison and jail system, and the system within a society by which accused people are tried for crimes and punished. It sounds rather simple, but there are a number of parts that must cohesively function together for the system to work properly. As we ve learned throughout the semester from our various speakers, research, and jail visit, our criminal justice system is far from perfect. There are more than a few flaws in the system, but my goal for this paper is to highlight what I feel is the most detrimental deficiency and to propose potential solutions for the problem. The biggest problem facing our criminal justice system is mass incarceration. Simply put, we send too many people to jail. To put this idea into context, the U.S. is the world s leader in incarcerations with over 2.2 million people in the nation s already overpopulation jails. According to a number of sources, the United States makes up only 5% of the world s population, but contains over 25% of the prisoned population (Huffington Post). Background on The American Justice System It is important to get some background information on the history of the American criminal justice system in order to understand it s lineage, traditions, and foundations that

2 seem so deeply rooted. According to AnthemCollege.edu, The U.S. criminal justice system is composed of three parts: the police, the courts, and corrections. All have historic roots and influences from English law and custom. Police forces can trace lineage way back to Alfred the Great, an old English king who ruled during the seventh century. Those that fell under his jurisdiction and promised their loyalty, organized patrols and appointed a higher official to oversee them. As Alfred s control and rule grew bigger, the patrols grew large allegiances headed by a sheriff. The same system lasted during the early New England colony days. Sheriffs were elected to keep the peace. By 1700, Philadelphia formally created 10 patrol areas in 1705 (AnthemCollege). Before the American Revolution and Civil Wars, rapid population growth and industrialization led to the formation of municipal police departments. Meanwhile, the old sheriff system followed the national expansion west, and still exists in many counties today. Today, sheriff and police departments are virtually identical in function. The main difference is that sheriffs are elected while local governments appoint police chiefs. Early American courts followed the laws of Great Britain (AnthemCollege). However on September 17, 1787, the United States Constitution was adopted and ratified in eleven states. The Bill of Rights, the name given to the first ten amendments of the Constitution, came into effect in The Fourth, Fifth, Sixth, and Eighth Amendments addressed ways to handle criminal justice in the new world. The Fourth Amendment protected citizens from unreasonable searches and seizures and required a search warrant to be issued based on probable cause. It also helped establish the exclusionary rule barring the introduction of illegally obtained evidence in a trial. The Fifth Amendment provided freedom from double jeopardy, self-incrimination, taking property without just

3 compensation, and guaranteed due process under the law. The Sixth Amendment contained various criminal trial rights such as the right to public trials, the right to trial by jury, and the right to confront witnesses. The Eighth Amendment guaranteed no excessive bail and no cruel or unusual punishment. These Amendments are still used today in the United States to protect the rights of the accused. Our early corrections system also had ties to the British penal system. Their system relied heavily on punishment and execution. During the 1800 s, more states turned to imprisoning offenders rather than executing them or subjecting them to cruel punishment (AnthemCollege). The reforming of prisoners and establishment of penitentiaries reflected the influence of Quaker ideology. During the mid-1800 s many penitentiaries became reformatories, popularized by Zebulon Brockway the superintendent of reformatory in New York who established a system of inmate classification and parole. The idea at the time was that criminals could be treated with corrective therapies like imposing total silence on the prison population and requiring inmates to wear striped uniforms (AnthemCollege). Today there is more of a focus on rehabilitation with hopes that after release, former convicts will be able to function normally and productively in society. As noted, our criminal justice system had early ties to the British system. However, with the establishment of the Constitution and a feeling of differing ourselves from England, Americans created a unique system that is much unchanged today. A Growing Problem So with a well-established criminal justice system that includes the protection of those accused of crimes and a clear instituted set of procedures, how can there be a

4 problem? Like anything else, when proper discretion is not used and abuse and corruption in the system takes place, things start naturally deteriorating. It would hard-pressed to find someone that will argue this fact: American incarcerates far too many people. The statistics speak for themselves. For example, in the years between 1972 and 2007, the nation s imprisonment rate more than quintupled increasing from 93 to 491 per 100,000 people, with estimates closer to 731 per 100,000 in 2011 (Broken System 1). This rate is alarmingly higher than other westernized countries like Germany (74 per 100k), France (72 per 100k), and England (132 per 100k). Prisons that had housed fewer than 200,000 inmates in Richard Nixon s first years in the White House, held more than 1.5 million as Barack Obama s administration began (1). According to an article by Adam Gopnik in the New Yorker, there are now more people under correctional supervision in America more than six million than were in the Gulag Archipelago under Stalin at its height. Coupled with this mass incarceration is our increased spending. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education (Gopnik 1). So who is to blame for this alarming rate of incarceration? William Stuntz, a now deceased Harvard Law School professor published a work called The Collapse of American Criminal Justice before his death in Stuntz believed that the growth of post-rockefeller drug laws, which punished minor drug offenses with major prison time, is a major reason for this increase (Gopnik 2). The idea of zero tolerance policing and mandatory-sentencing law that prevented judges from exercising judgment, Stunzt believes also led to this incarceration epidemic. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill

5 of Rights is a terrible document with which to start a justice system because it emphasizes process and procedure rather than principles (2). New York City: A Model for Reform Because of shifts in crime policy and policing practices, New York City has seen a dramatic decrease in crime and incarcerations. According to report by the Brennan Center For Justice at NYU, New York City has been sending fewer people into the justice system and reduced mass incarceration in the entire state (Austin and Jacobsen 1). Though some states have decreased their prison populations slightly, New York is the first state documented to have decreased its entire correctional population (1). Another piece of primary data in the report notes that the New York State prison population declined by 17 percent from 71,000 in 2000 to 59,000 in 2009 (2). Declines in the New York City prison population provided a catalyst for the rest of the state. How did this occur? New York began shifting resources toward misdemeanor arrests as part of the broken windows policing model, which contributed to decreases in felony arrests (2). While not always the most popular style of policing, a drop in the number of felonies led fewer people to enter prison, probation and parole rolls. Another factor like the many diversion programs also contributed to this decline (2). For example, in a 20-year span from 1988 to 2008, felonies in New York City dropped from 719, 887 to 198,419, a remarkable 72 percent reduction (2). This policy shift was almost derailed in 1994 when the federal government paid states to create laws increasing prison sentences (2). Congress used the power of the purse to pull states in this direction in spite of evidence showing that increased prison time does not decrease crime or

6 recidivism. This problem is one that a number of states run into when lobbyists and money take control. My Proposed Solution While I believe that New York has found a very suitable system for eliminating felony convictions, I don t believe that a bottom down solution is the correct way of handling the extensive mass incarceration. For example, the stop and frisk policy that a number of jurisdictions have adopted is extremely controversial, invasive of privacy, and many have felt that the policy tends to lead to racial profiling. To preface my proposed solution, I would like to first say that I am not one of those crazy conspiracy people and I do not advocate or condone the use of hard drugs. However, my solution is to stop jailing non-violent offenders. I propose alternative options like community-based

7 treatment facilities. These are more likely be cost-effective, research-based alternatives to incarceration, which emphasize treatment and community supervision. Obviously this proposal sounds much easier on paper and would be extremely difficult to implement, however it s an idea that has stimulated much debate. For example, in a state that I ve called home before, West Virginia, current governor Earl Ray Tomblin has endorsed recommendations put forth by the National Council of State Governments, but bureaucratic issues have stymied efforts (WV Gazette). While I believe this should be done on a national level, I think one state stepping up and leading by example is perhaps the most feasible short-term way to accomplish this. While I personally believe the war on drugs is a complete and utter failure, I m not sure drug legalization is necessarily the right move. My proposal is to invest money and resources into alternative options for non-violent offenders. This would not only free up jail space for real criminals, but would ultimately save the states money. While generally a liberal viewpoint, conservatives like Senator Rand Paul agree that incarceration for non-violent crimes is a waste of time and resources. He reportedly told Fox News that many young people smoke marijuana, but eventually grow up. Paul also stated that he worried that throwing people in jail for non-violent crimes ruins lives and noted that our current and former presidents conceivably could have been put in jail for their drug use which could have ultimately destroyed their future in politics. What about the feasibility of this policy? What kind of statistics back up this notion to find alternatives for non-violent offenders? According to Pew Research center, experts estimate that states would save 16.9 billion dollars a year if they reduced the incarceration rate of non-violent offenders by 50% (Pew). Experts have also noted that

8 such reform would not negatively impact public safety. This one is a no-brainer: nonviolent crimes are exactly what they sound like, non-violent. Those worried about the other impacts from non-violent crimes that do not necessarily entail violence should look at some of the other statistics. Pew Center also found widespread support for investing resources into less-costly alternatives than prisons (Pew). Here are several potential different alternatives to incarceration that I will compare analytically for feasibility and potential benefits: establish diversion programs and drug courts, find alternative sentencing options, reform criminal justice policies, and decriminalize low-level drug use. 1. Establish Diversion Programs and Drug Courts I visited the drug court in Syracuse, NY and liked what I saw. As of the beginning of 2012, there were over 2600 drug courts operating in the US. Most of these drug courts include a diversion program for non-violent offenders, which give people the opportunity to dismiss their criminal charges by successfully completing drug treatment programs. They have been praised due to their low-recidivism rates and because they are a low-cost option. This is a great option in my opinion for non-violent offenders because it allows criminals the opportunity to have their charges dropped. It requires little resources, and has been shown to be effective. 2. Alternative Sentencing Options Instead of prison time or drug court, alternative sentencing like probation, house arrest, community-based treatment, or fines are great options. Not only does this clear space in prisons for violent offenders, but it also allows for potential rehabilitation in a non-prisonlike setting. According to the Center for Impact Research, The Center for Impact Research

9 estimates that if only 10% of the non-violent drug offenders in Illinois prisons were sentenced to community supervision and treatment in 2003 rather than incarceration, the state could have saved about $17 million in annual incarceration costs (CIR). This is a low-cost option that could save money. There could ultimately be some hesitancy by the states because it requires almost too little supervision, but is certainly an established option. I believe that this is the best option to pursue and I will discuss it a little more in-depth later on in this paper. 3. Reform Criminal Justice Policies Why not simply reclassify minor crimes as either civil offenses or petty summary offences? This could eliminate any incarceration time for minor offenses. Increasing the dollar threshold for minor non-violent property crime or increasing the amount or quantity of drugs required for felony charges is another good example of this reclassifying. States like Kentucky have enacted laws that allow small time drug offenders to be put on probation and reduced penalties for small time dealing (Pew). Reforming laws would most certainly keep non-violent offenders away from prisons. I see a lot of bureaucratic red tape with this option however. It could potentially look like the state is trying to let drug offenders off the hook, and would require some real convincing for voters or legislators. 4. Decriminalize Low-Level Drug Use If you want to speak about potential bureaucratic problems, this one carries the most leverage. While certainly an option, I foreshadow many issues with this. States like Colorado have essentially legalized marijuana, however under federal legislation and the Drug Enforcement Agency, dispensaries and users could still technically be persecuted under

10 national law. This, in my opinion, is completely infeasible at this time. It is not worth discussing the hypothetical benefits because we cannot really be sure. Perhaps as changing views and perception about small time drugs and enforcement changes, this could be a foreseeable option. However for now, I cannot see this happening. My Plan I think that eliminating jail time and expanding rehabilitation programs is the best option to move forward. In 2012, New Jersey Governor Chris Christie signed a bill that did just this (Pew). Supporters have noted that drug addition is an illness, not a crime, and that proper medical treatment is a better option. I feel that allocating resources towards rehabilitation programs and giving probation and community with the ability to expunge any charges afterwards, is most certainly the right thing to do. While I hope this could happen at the national level, the bureaucratic mess and stalemate that congress finds itself in currently, is definitely a barrier. Advocating this idea to individual states is more likely to be important in seeing this happen. There are certainly a number of ethical issues that many voters would have a tough time looking over. There is this impression that jailing any kind of non-violent offender, usually small drug criminals, is cleaning up the streets and that everyone must be stopped. However if there is no violence accompanying these offenders, is it really an issue? As soon as you mention proposing alternative solutions for non-violent drug offenders, there are sure to be a number of people who will be angry. However if this can save money, resources, time, and energy, and if people could truly see the detrimental impact of sending non-violent offenders to

11 over-packed prisons, and the toll on their taxpaying dollars, I think people would have a very different mindset. As I mentioned before, generally speaking, liberals are historically more likely to vote for an option, which could potentially lead to policies that would legalize drugs completely. I foresee some political turmoil and a number of lobbyists and activists pressuring both ends of the coin. This would be extremely hard to implement nationally, but as demonstrate in states like New Jersey, could probably happen in more left-leaning states. Finacial impact would be huge in a few years, but immediate increases in taxes to fund new programs could potentially be a problem for some. There must be some sort of evaluation tool necessary for all the gears to properly shift together. Working cohesively with a research organization to compile statistics after a few years would be key. For example, if a policy like this was imposed at the state level, it would be important to measure the number of incarcerated individuals at the start, and then again after each year. I would do this annually by checking the records at I ll use WV for example the West Virginia Department of Corrections. It would be difficult to immediately pinpoint one policy for declining incarceration. If over time this was an obvious decline, it might be easier to associate the trend with this policy. For example, in New York City it was clear that changing their policies led to decreases in the number of incarcerated individuals. It was after at least 5-6 years and more thorough analysis of this statistics that the connection was made. Conclusion How can we stop the epidemic of mass incarceration? Finding alternative punishments and reforming our laws is perhaps the best step. In this paper I have

12 mentioned a number of different options. The best solution comes after trial and error. While the hope is that this could be enacted at the national level, as demonstrated by the progressivism of other states, it is more feasible at the state level. There a number of local grassroots organization and activist groups that are making headway for this to become a reality.

13 Works Cited Anthem College: Brennan Center James Austin and Michael Jacobsen _Incarceration.pdf Broken System: Huff Post: New Yorker Adam Gopnik Pew Center and Chicago Lawyers Committee Review of Alternatives for Non-Violent Crimes West Virginia-Gazette Wise Geek