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Criminal Justice Reform Is Necessary
My friend Sean Kennedy asserts in a column at Real Clear Policy that the “Bipartisan Push for Criminal Justice Reform Is Misguided.” I respectfully disagree. On the contrary, criminal justice reform is a conservative effort that is necessary to restrain government that has grown too large, powerful, and costly.
Criminal justice reform, or CJR for short, is a broad-based movement made up of numerous policy reforms taking place mostly at the state level. Texas has pioneered many of the reforms and has inspired a growing number of states to follow suit which has led to, among other beneficial results, reduced recidivism rates and lower prison costs.
CJR is a policy response to the problem of overcriminalization which can be defined as the criminalization of routine behavior that has no business being criminalized and the overly burdensome punishments that are handed down for minor infractions. Or to put it another way, we have too many statutory and administrative laws that are too vague and carry overly disproportionate penalties in contravention to the old saying that “the punishment must fit the crime.”
For a taste of what this means consider three examples of overcriminalization:
A woman in Washington state spent 30 days in jail on a drug possession charge and 22 years later could not get a license to be an insurance agent or a nurse because of the decades-old record.
An Arkansas man had nearly $20,000 of his own lawfully earned money seized in a traffic stop even though he was never charged with a crime and prosecutors attempted to dismiss the forfeiture.
An Illinois man was prosecuted on “conservation law violations” after he rescued two injured eaglets. He was charged with four violations that each carried up to one year in prison and $2,500 in fines. His first trial ended in a hung jury that resulted in a mistrial so he was tried again. The jury in the second trial had the common sense to acquit but by then the man had spent two years and tens of thousands of dollars defending himself from charges that could have put him in prison for up to four years. Again, his crime was rescuing two injured juvenile bald eagles.
The basis for CJR then is the notion that in the United States we incarcerate or otherwise punish too many people for too long a time at too great a cost.
Former Texas Gov. Rick Perry, who is a CJR supporter and a signatory to the Right on Crime statement of principles, is fond of pointing out that we should be incarcerating the people we’re afraid of, not the people we’re mad at. Gov. Perry is not the only person to make this observation, but it is noteworthy that he made it as a popular Republican governor of one of the reddest of red states.
Policies that fall under the CJR umbrella include efforts to decriminalize truancy, end the state-sanctioned piracy otherwise known as civil asset forfeiture, use probation rather than incarceration for some low-level nonviolent offenders, provide restitution for victims of property crimes, create reentry programs to help people successfully transition to life outside of prison, reform occupational licensing, and make punishments more proportionate to crimes, to name just a few.
Going back to the Real Clear Policy article, there are two key problems with Kennedy’s analysis. First, he claims criminal justice reform is misguided without bothering to address any of the actual policies under that very broad umbrella term. Kennedy’s second mistake is to create a strawman argument by laying out three “myths” that he wrongly implies form the basis of the CJR movement.
For example, Kennedy cites as his first myth the claim that “The U.S. engages in ‘mass incarceration,’ incarcerating the most people in the world.” While some reform supporters may make such a claim, that shouldn’t be taken to mean that the people actually moving these reforms forward are basing public policy on that assertion. I know many people working on CJR issues and none of them would either claim this statistic as a fact or cite it as a reason for enacting their policies. They will all tell you that we incarcerate too many people for things that don’t necessarily merit incarceration but they won’t make outlandish claims that aren’t supported by facts.
Conservatives are generally suspicious of government that is too big, too costly, and too powerful. That is, until it comes to the justice system where we seem to think it’s okay for the government to be big and powerful and spend our tax dollars like a drunken sailor. But why should we view the justice system any differently than the rest of the government? Why should we not demand transparency and accountability? Why should we not demand that crime and punishment be proportional? Why should we not demand that justice-related spending be efficient and cost-effective?
The answer is that we should demand these things. And to a growing extent we are, which is why it is mostly conservative states with Republican governors leading the way on criminal justice reform and in so doing making the system more just and less costly to taxpayers. To be sure, some liberal lawmakers who support the movement may tend to overreach and make the leap from being right on crime to being soft on crime. But that’s no reason to condemn the entire movement.
Criminal justice reform is not some misguided liberal effort to open the prison doors and set free everyone convicted of drug-related crimes as some opponents charge; rather it is a moral imperative for a society that values limited government, individual liberty, personal responsibility, and a justice system that is fair to victims, violators, and the taxpayers who fund it.Published in Law, Policing
This is very silly.
I wrote one that was published in our state bar association magazine, called “Uninformed Consent” about the collateral civil consequences of pleading guilty, of which, incredibly, a defendant does not have to be informed !
People don’t think so, but this is a really big deal. It is very very easy for anyone to become a criminal defendant. Hint: never give a kid you don’t know very well a ride anywhere…..
Too much behavior is criminalized, as you point out. We’re all doing 3 felonies a day, according to one author! And that means police, fed investigators and the like can pick and choose who to go after. Just like with the speed limit–everybody’s speeding, but that’s no defense, so cops can pull over anybody they want. Usually a black guy or a woman alone.
And way too many people in prison. No one should be locked up except for crimes that hurt other people. Property crimes, electronic manacle and restitution. Where that’s been used just cuz they ran outta room, it is no less effective than incarceration in preventing recidivism.
I’m no fan of Prez Omega, but I did like the bipartisan policy to release nonviolent drug offenders. Institutionalized for decades just cuz you wanted to make a few hundred dollars muling coke back and forth? That’s Jean Valjean territory.
And for the finalé! We must address this now before the private prison industry gets any bigger, or their lobbyists will just press for more and more behavior to be criminalized with longer and longer sentences.
I so much hope people on this site read and consider your article. The Right is traditionally “tough on crime” (tho it’s often the Left, Like Clinton, who actually put in the most Draconian measures, in an attempt to ensure that no one gets special treatment.) But really, everyone: look up the stats, and the lifelong consequences of being convicted of or pleading guilty to a crime! In my state there are over 300 such collateral consequences.
And if you are ever unlucky enough to get ensnared, there’ll be lotsa pressure to plead guilty to sump’n, cuz I think it’s only like 2% of criminal cases that ever go to trial any more. But do yourself and the “Justice ” system a favor: do not take the plea.
Mark Geragos makes a good case for doing away with cash bail in the majority of cases. Now Mark Gerogos is no conservative, and he is a defense attorney to boot, but he points out the lunacy of putting people in jail, and in many cases destroying their lives, in a day and age when trials for low-level crimes can be delayed for years. I think this would be a good first start. Combining this with more probation and less incarceration would help reduce the vast amounts of money we are spending.
My problem with broad-based criminal justice reform is that it’s too broadly based. Despite Mr. Ferguson’s disclaimer, it partakes of the myth that massive numbers of non-violent first offenders are routinely incarcerated. Some causes such as civil-forfeiture reform are necessary, but other causes simply partake of leftist cant and discredit the rest of the movement.
Just because it’s leftist cant doesn’t mean it’s wrong. There is a lot of leftist cant that is good, but for which the leftists are lying and don’t really mean it.
If you want to go Alinsky on them, you sometimes need to make them live up to their principles.
The idea that incarceration should be the default punishment for crimes, even serious crimes, is one of the main problems. It’s as if we just couldn’t figure out any other punishment, so we just default to incarceration. Punishment is necessary, but there are many different ways to do that, many that are less expensive and which could be combined with restitution.
Agreed. Overcharging is a big issue that is used to overwhelm a defendant into cutting a plea. It’s obviously an effective tactic since it is used so widely and so few cases actually go to trial but can lead to innocent people pleading guilty. Easy to see how they look at a mountain of charges and feel like they’re being railroaded which leads them to reason that they’re better off taking a deal rather than risking a conviction and getting a worse sentence.
I love that avatar!
I would argue that it is a lot more than forfeiture (though that is an important one). Though I would say that a person it is not necessary to agree with every policy under the CJR banner to support CJR generally. There are so many good reforms being made under that banner that it would be a shame to see the whole concept shunned because of a couple of policy overreaches made under its name.
People reading this will be thinking, well, very interesting, but I’m not going to commit a crime, my family isn’t going to commit any crimes, so really, this will never affect me.
Anyone could be driving home very late at night, and be pulled over by a cop. It’s just you and him alone on a dark road. I know someone who made the awful mistake of asking twice, “Why did you stop me?” And ended up being pepper sprayed, handcuffed and arrested, dumped hog tied into the police cruiser, and charged with disorderly conduct, a misdemeanor. He was immediately a “perpetrator”. Oh, charges were dropped in exchange for his promise not to sue the little blue pants off ’em–but he has an arrest record. (Think how many times you casually circle “no” in response to a question on some form: have you ever been arrested? If yes, explain).
And in my state, the Megan’s Law type statute applies to any sexual overture or contact which later turns out to be unwanted, even between two adults.
Have you got that? It need not involve a child or minor.
So your son walks into a bar and misinterprets the friendliness of someone he’s drinking with. Suddenly he’s a perp–of sexual assault and/or its many, many offshoots.
This, ladies and gentlemen, is the very worst, because of the sequelae. His picture will be published online as a sex offender. His neighbors will receive letters introducing them to their neighbor the sex offender. No matter where he goes , he will have to register as a sex offender. He will never be able to get a job where he might encounter minors.
In my state, they just passed a new sex-crime type law which required people who had been convicted, or pled guilty, years ago, and who had already completed the old mandatory registration period, to come back and re-register!! Ex post facto doctrine only applies to criminal punishment, not to civil, remedial, “non-punitive”burdens.
This could happen to you.
We have too many people in prison.
The system does a lousy job of determining guilt and innocence. The Innocence Project showed what an embarrassment our criminal courts can be. Slow, expensive and error-prone.
Anybody without resources for a defense can and will get rolled. We cheap up on indigent defense in capital cases but then watch the Harvard Law faculty handle the appeals pro bono. That is backwards.
We impose fines with interest on numerous people who we know can’t pay them then wonder why they shun/flee the cops. We make our cops less involved in law enforcement and more directed to revenue generation.
Judges and jurors who could not pass a 7th general science exam evaluate technical evidence so poorly it would be cheaper and faster to skip the experts and flip a coin. (Anybody remember how badly Judge Ito botched the EDTA issue in the OJ trial?).
A major cognitive barrier to reform is the influence of legal tradition. Our lawyers and judges don’t wear wigs but the black robes and gavels and the entire nature of trial are still from an earlier era. Every time change is proposed there is an institutional fear that it will somehow sever the mystical umbilical link to the forests of Wessex from whence comes our living legal tradition. Bollocks.
There is a lot here that I agree with.
I definitely agree with the idea that non-violent criminals need to be handled differently than violent criminals. Once you put someone in prison, they either become violent or get abused very badly by the other inmates. That is not an outcome that helps society.
There are several laws that are abused by Police and Prosecutors to jail people who have committed relatively minor crimes (or no crime in some cases). Stories of this abound.
We do need to be careful with which criminals are set free. California and Nevada are experiencing increased crime rates since they let out a significant number of California prisoners recently. I would prefer putting some convicts in work-release programs for a while rather than just sending them out into society.
**It’s not only poor people who get rolled. If you get arrested, your first thought will be, C’mon! I’m no criminal! Let’s just clear up this misunderstanding!
Then you’ll realize your whole prior life counts for nothing once you’re a criminal defendant. And you’ll realize that the police and the prosecution are not there to filter people out of the system. No, their careers depend on their being able to boast that nobody walks when they’re on the case. You’re gonna hafta give ’em something.
So again, for the third time: At least, make sure that plea deal is, really, a “bargain”. Inform yourself of the civil collaterals consequences of your new status. Better yet, don’t take the plea. It’s one thing to know you defended yourself, and lost. It’s another thing to live the rest of your life knowing you unwittingly surrendered precious rights snd privileges.
The scoreboard mentality of prosecutors is a known problem.
The expense of being made to defend is excessive.
The threat of excessive punishments as a bargaining chip is in part a function of bad law. There is a lot of legal journal discussion of the pros and cons of plea bargaining.
There is very little by way of consequence for prosecutors unless they get caught in major misconduct.
I watched Montgomery County MD prosecutors and Gaithersburg cops fashion a weapons charge against a kid we knew for having a broken axe handle in his car. (He broke the axe clearing brush, tossed it in and never cleaned anything in that car.) Why? Because they had arrested and roughed him up by mistake (wrong car, wrong identification) and wanted a bargaining chip in the expected civil suit and a way to justify their actions. Cost his family a lot to defend and none of those sorry bastards were ever disciplined.
The political hack State’s Attorney for the county who set the awful partisan, win-at-all-costs tone went on to become Maryland’s Attorney General. Naturally.
As Instapundit is fond of saying, the process is the punishment. Even if there is no conviction the cost and headache associated with mounting a defense can be debilitating.
A shocking, infuriating story!
There’s also the little known fact that the prosecution only has to disclose its evidence, including exculpatory evidence, AFTER defendant rejects plea bargain and says he wants trial.
You would never settle a civil case,,where it’s only money at stake, without having taken discovery of every aspect of opponent’s case. But in crim,law, where its life and liberty, you bargain knowing nothing.
And yes, prosecutors are practically immune. But so are crim defense counsel, right? If deft wants to claim counsel screwed up, a court will either say, you’re right, counsel was ineffective; you get a new trial–or, they’ll say no, counsel wasn’t ineffective–so either way, where’s your case for malpractice?
As a prosecutor myself (mayhaps the only one in the Ricochet community?), you will probably be surprised to hear that I agree, to an extent, with the need for some CJR. I particularly endorse those reforms recommended by Prison Fellowship.
And, as many have pointed out here, I do think that civil forfeiture can be abused, and often is. However, there are some crimes (drug trafficking) where it is particularly effective in reducing criminal enterprises. (Though I can already hear the Ricochetti who support drug legalization warming up their keyboards.)
However, as someone on the “inside,” much of the comments in this thread impress me as perhaps uninformed hyperbole.
For instance, the vast majority of people who go into law enforcement (police and prosecutors) are not power-hungry tyrants. They are dedicated folks who want to make a difference, who want to keep the streets safe for their families, and their neighbors’ families. Are there “bad eggs?” Of course! But, in my experience, far fewer than in other fields. And, they certainly aren’t in it for the money.
Hypatia: I don’t know about Pennsylvania, but, here in California, we are statutorily required to discover all of our evidence within 15 days of a defense request . . . regardless of the procedural status of the case.
I imagine most states have a similar requirement.
I agree with this. I think the a big part of the impetus for CJR is to cut off the ability of the bad eggs to do real damage. It’s also to take care of systemic issues that don’t have anything to do with malicious intent on the law enforcement side. The truancy issue is a great example. Texas just decriminalized truancy in a way that will help reduce truancy without leaving juveniles with a criminal record for skipping school. I don’t think anyone supporting that reform did so because they thought law enforcement was acting in bad faith. They just thought making criminals out of truants was bad policy.
I will follow up by saying that on the forfeiture issue I think there is clearly a lot of bad faith on the part of law enforcement that goes far beyond a few bad eggs.
A reform with which I totally agree. Our office is doing something similar, a very proactive approach which involves the truant’s family and community.
Curious: what specifically are they doing in Texas?
Well, unfortunately . . . yeah. Lord Acton predicted that.
Like the use/abuse of RICO, it needs to be reined in and limited.
As I’ve written elsewhere at Ricochet, these abuses appear to be more prevalent at the federal level . . . which is not a surprise to anyone who knows their Tocqueville.
How do YOU know I’m from Pa?!? ( Guilty!).
I’m glad to hear the above. I’m not a criminal defense lawyer, so this is just based on research. I think what I said about disclosure is true in Pa, though. And I would feel much better if all states were like Cal. re the Brady Rule.
How about we just follow the constitution and not nullify it. Oh wait unelected judges did that and elected politicians let them get away with it. It is an increasing tyrannical unaccountable legal class that is increasing tyranny in the U.S. It is insane what government workers can get away in a society supposedly based on the rule of law. I can go to jail for years based on some state status that no other state has. A cop or a judges breaks the overriding law of the land via warrant-less action, or not allowing me to have a speedy trial and because there are no statutory penalties and all criminal prosecution is the purvey of governmental lawyers so they get to keep their job.
The fact that now that lower tier laws of less authority nullify the overriding law of the land means we have become lawless because the law now becomes like what it was in the old days. What ever I say the law is (which is what administrative law is) and I can change my mind. When everything is illegal you basically have a lawless society because enforcing the law is now on the whim of the government.
Most of these reforms you are talking about is reforming things which should of never been allowed to be legal in the first place per the constitution. So when I talk about criminal reform I am talking about going back to the modern radical constitutional principals not some boring and old progressive idea (which in reality are thousands of years old).
Which part of the Constitution are you thinking of here?
We don’t have a criminal justice system so much as a criminal processing system. It is actually rare for an innocent person to be charged, but when it happens it is catastrophic for that person and the family.
Some reforms are desparately needed, especially in the civil forfeiture area. Also we need to repeal so many things that are crimes without victims.
I find myself resenting the acronym. CJR? Really? It sounds as bad as SJW.
Looking at the comments, I agree that there should be changes. Arrest records, as opposed to convictions should probably be sealed if charges are dropped. I’m not totally convinced on this point, it makes the system less transparent. Perhaps it should be the arrestees choice. I don’t like public “perp walks.” Potential employers are now surreptitiously looking up someone’s arrest record simply by searching through online newspapers.
The restrictions on the issuance of licenses and government certificates to those convicted of misdemeanors should be looked at. Once a person has fully completed his or her sentence (including parole) there should be a time limit when these restrictions go away.
Part of the problem is the proliferation of laws. When I entered the workforce in the 1970’s, people were liable for a lot less.
Lastly, whatever reforms are initiated or proposed, I am suspicious of “comprehensive” legislation. I say take it slow.
Yup, some reform supporters do make that claim. We probably don’t have too many people in prison in the sense that the vast majority of people there actually belong there.
But we do have too many rules now, and the average citizen wouldn’t be able to stand up to the scrutiny if a prosecutor, especially a federal prosecutor, were to decide to focus on someone. They could potentially get you for something. It doesn’t happen very often, but it should be a concern.
There is hardly any acronym, cliche, or phrase of the left that can’t be used against the left better than it can be used against us. Just do it. Don’t make a big deal out of it. Don’t explain. Just do.