DECEMBER 15, 2018
NEARLY ONE IN 100 adult Americans is behind bars. That means approximately 2.3 million people are incarcerated in the United States. The US has more people imprisoned than India and China combined, and the US per capita incarceration rate is eight and five times higher than Germany and Australia, respectively. Norway and Los Angeles have about the same population, yet Norway has roughly 3,000 people incarcerated, while Los Angeles has 50,000.
These are some of the background facts offered by Greg Berman, director, and Julian Adler, director of policy and research, of the New York–based Center for Court Innovation, in their cogent book, Start Here: A Road Map to Reducing Mass Incarceration. While concern about mass incarceration has been increasing and various state, municipal, and nongovernmental programs promote imprisonment alternatives, Berman and Adler underscore that judges, prosecutors, and police officers generally have a constrained array of choices for the accused. Stiff 1990s and 2000s sentencing laws are still in place that also incline prosecutors to charge defendants with felonies. The result is that “[t]he United States locks up more of its citizens than any other country on earth.” Moreover, Berman and Adler stress that undue jailings and prison terms are “accelerants of human misery” because individuals are often traumatized while incarcerated and become entrenched with distrust for the halls of justice. “If you are poor or mentally ill or struggling to keep your family together, when you enter, the chances are that all of these conditions will be markedly worse when you come out,” Berman and Adler write.
The challenges for reducing mass incarceration are complicated and nuanced, and Berman and Adler offer a smoothly written survey of the background conditions and the responses that different jurisdictions and advocacy groups are trying — for example, risk analysis for detention and sentencing decisions; cognitive therapy programs for accused or convicted offenders with aggressive or addictive traits; raising awareness within the judiciary of counterproductive fees and fines; and alternative legal venues for drug users and young adults. They state and restate that it will take sustained effort on many fronts and gradual cultural shifts, but that there are enough effective responses and instances of culture change to demonstrate that significantly reducing incarceration can be done.
Another cross-cutting truism that Berman and Adler reiterate is that treating the accused with a humane touch can make a huge difference. How a defendant subjectively experiences the criminal justice system will affect his or her future behavior; empathic corrective treatment can go far in raising an individual’s ability to handle future life challenges in a law-abiding manner. “In our experience, the best way to change the behavior of defendants is by creating caring relationships with social workers, judges, mentors, clergy, family members, employers, and others,” Berman and Adler write. “Almost no one transforms their life without positive connections with their fellow human beings.”
Indeed, reformers are trying to address defendants’ hardening experience with courts and law enforcement. Berman and Adler point to the “procedural justice” approach, seminally articulated by Yale law professor Tom Tyler in Why People Obey the Law. Its major thrust is “that defendants who experience a justice process that they perceive to be fair and transparent are more likely to be law-abiding in the future.” Berman and Adler further enunciate four key procedural justice criteria that the accused should feel as they go through the criminal justice process:
voice (were you given a chance to tell your side of the story?); respect (were you treated with dignity?); neutrality (did you perceive decision makers as unbiased and trustworthy?); and understanding (did you understand your rights, obligations and the decisions that were made about you?).
The authors describe how Victoria Pratt, at the time the Chief Judge of Newark’s Municipal Court, presided over a problem-solving court and the program created to offer defendants meaningful alternatives to sentences involving jail or fines: Newark Community Solutions. In an effort to alleviate social issues exacerbated by the community’s contact with the criminal justice system, Judge Pratt employed procedural justice and non-traditional sentences in a setting marked by recidivism, unpayable fines, and distressing and dangerous incarceration conditions at the city’s notorious Green Street jail. “I just get on the bench and treat people the way I would want my family members to be treated,” Pratt says.
Berman and Adler’s organization, the Center for Court Innovation, helped set up Newark Community Solutions, as well as the Brooklyn alternative court Red Hook Community Justice Center, whose judge, Alex Calabrese, is similarly noted for his articulate interaction with defendants. As part of its operations, the Red Hook Justice Center also “links thousands of defendants to social services and community restitution projects in lieu of jail and fines.”
The book’s narrative is especially vivid when Berman and Adler discuss specific proactive programs in different states that target different at-risk populations. For example, there is innovation even in the difficult area of domestic violence, typified by Iowa’s ACTV (Achieving Change Through Value-Based Behavior) program that focuses on coping skills and features a nonjudgmental elicitation as to what the offenders most value. In the case managers experience, the offenders are surprisingly clear that children, family, spirituality, and work are standout priorities. “A lot of them have just never been asked what’s important to them, and then a lot of them don’t know how to live a life in service of those values,” says Amie Zarling, the Iowa State University forensic psychologist who developed ACTV. While the rigorous 24-session ACTV program had a relatively high drop-out rate, the state’s review found that incidents of domestic violence dropped by two-thirds among those who completed ACTV relative to those enrolled in standard treatment programs, and a violent crime re-offense rate of eight percent compared to 23 percent.
Another interesting program is Seattle’s LEAD (Law Enforcement Assisted Diversion) program by which law enforcement officers who confront individuals with signs of drug abuse can direct them to service providers, avoiding booking and incarceration. LEAD’s staffers work with many challenging individuals, often homeless or suffering mental illness, yet, as Berman and Adler point out, “research to date does show that LEAD participants are significantly less likely to be rearrested than those in a control group.”
To no one’s surprise, drugs loom large, but Berman and Adler point out that, contrary to common wisdom, drug convictions do not make up the bulk of US incarceration. Nonviolent drug crimes account for about 16 percent of state-level imprisonment cases while violent offenses predominate at 53.2 percent, according to a 2014 study the authors cite. However, what is a violent offense is dubious, and Berman and Adler offer robbery, the top charge of 180,000 state prisoners, as a murky example, as reflected in the Department of Justice’s Bureau of Justice Statistics definition — “Robbery is the completed or attempted theft, directly from a person, of property or cash by force or threat of force, with or without a weapon, and with or without injury.” More to the point, the authors mention that six out of 10 defendants test positive for illegal drugs at the time of arrest, underscoring that problems with drugs figure significantly with mass incarceration.
This has been appreciated for years, and in 1989 Miami legal advocates, including then state attorney Janet Reno, instituted the first of the drug treatment courts, specialized courts with judges schooled in addiction who can prescribe drug treatment and other options for defendants in lieu of imprisonment. The drug court idea has proved attractive, and Berman and Adler report that the nation’s 3,000 drug courts are now in every state. The social science research supports their efficacy, with a 2011 Department of Justice–funded study finding that over an 18-month period, drug court participants were one-third less likely to succumb to drug use and committed less than half the criminal acts than a comparative group of defendants steered through regular criminal justice processing. Yet, drug courts are not connecting with enough individuals, and Berman and Adler cite a 2008 study that “as few as 3.8 percent of potentially treatable arrestees are participating in a drug court.”
Jailing those awaiting trial or who cannot pay penalty fees is another bloating and tragic aspect of mass incarceration. In contrast to prisons, where individuals typically go for longer than one-year sentences, people are placed in jail for shorter misdemeanor sentences or because they have been denied bail or cannot pay bail and punitive fines. The authors cite that 60 percent of the US jail population is awaiting trial — that is, before a court has determined guilt or innocence. The population rotated into prison is also huge: 11.5 million were admitted to jail in 2014 while in the same year, state and federal prisons combined admitted 700,000 individuals. Berman and Adler further point to federal statistics reporting that from 1980 to 2008, “the number of inmates housed in a local jail on any given day in the United States increased by 426 percent (from 184,000 to 785,500).” Of course, there is the human cost, with jails being overcrowded and dangerous, and many people have their lives and finances significantly impaired with just short stays.
Perhaps most distressing is the common situation in which poor people get roped into fines, even for infractions, that they do not have the financial means to pay for and so end up in jail. Ferguson, Missouri, and the ensuing federal report brought this to national attention. “In St. Louis, recent events have exposed a toxic relationship between communities of color and local government, much of it driven by the insight that the justice system was using fees and fines to balance budgets,” Berman and Adler write.
In all jurisdictions, it will take a culture change and keen attention on the part of judges to redress the injustice of jailing poor people for inability to pay fines. Berman and Adler quote Newark Judge Pratt recounting the absurdity of a prosecutor calling for a 50-dollar fine for a defendant that came to court with only one shoe. “It’s my job as the judge to ensure that the interests of justice are met. It doesn’t serve the interest of justice to give somebody a fine they can’t pay and not give them a way to pay it.”
Yet, there is some significant change occurring, and Berman and Adler point to the example of New York City’s Rikers Island jail, where inmates are geographically separated from support and historically subject to horrendous conditions. New York City has cut the Rikers Island population to 10,000 down from 20,000, and the authors describe the current politics and consensus to eventually close the jail. Berman and Adler also discuss Washington, DC, with the DC jail population 50 percent below capacity, and nine out of ten defendants “released (either on their own recognizance or with supervision) while their cases are pending.” The DC justice system employs risk analysis, which has gained currency and sophistication nationwide, so that judges can tailor the release conditions for each defendant.
Toward the end of the book, Berman and Adler focus on state-wide initiatives for reducing mass incarceration. Many state governments, burdened with huge costs, look to reverse the mass incarceration trend by adding drug courts, treatment and job training programs, and other measures. According to Berman and Adler, the progress is bipartisan, as demonstrated by reform in states run with conservative governors and legislatures, such as Georgia, Utah, and Mississippi. This is all the more critical, given the back-and-forth revision of proposed federal sentencing reform and an acting and nominated new attorney general, whose sympathies for reducing imprisonment are dubious.
A particular challenge for states is to not reverse reform when there is an instance of a parolee committing a horrible crime. When this occurs, the response has on occasion been stricter sentencing and revised laws, some of which are eponymous laws, named after a victim, such as Megan’s Law. This puts reforming legislators and open-minded prosecutors in tight binds. “[T]he immediate aftermath of a unique tragedy may not be the best time to construct new frameworks that will govern how thousands of future cases will be handled,” Berman and Adler write.
For example, they contrast Utah’s and Arkansas’s responses to similar events. Utah, on the one hand, resisted reversing its successful program to reduce incarceration in 2016 after Salt Lake City police officer Doug Barney was killed by a parolee who absconded from a prescribed drug treatment program. Arkansas, on the other hand, reversed its reformed incarceration program, passed in 2011, after a recurrent offender and parolee murdered a young man. The result: “[T]he parole boards shut the door […] [and] Arkansas now has the second-fastest rate of prison growth in the country.” Berman and Adler are emphatic that these reverses are counterproductive and hurt many who would abide by the terms of their release.
Adding critical nuance, Start Here frequently brings up racial injustice, poverty, and other social concerns, highlighting the significant criticism for risk analysis, as it relies heavily on history of defendants, who might very well have faced incidental or systematic racism in their past criminal justice encounters. The authors also offer balanced prescriptions throughout, such as the last chapter’s three overarching fronts for change: crime prevention in communities; treat with respect everyone involved in the criminal justice system; and expand the array of sanctions available for judges. Although the book’s prescriptions are more of a collection of compelling responses than a road map, Start Here contains articulate discussions and narratives that yield a vision for a future United States that will not stand out for its distressing mass incarceration.