Criminal Justice Reform

Perhaps one of the most sobering parts of being a criminal defender is in interacting with my clients and realizing how many of us could have ended up in their shoes. When I interact with my clients, I hear their stories, and that often gives me a unique glimpse into how:

good people do bad things,

good people can make BIG mistakes,

sometimes people are wrongfully accused of something they DID NOT DO,

some people are punished too harshly for what they DID do,

and most important, how badly we are ALL in need of grace.

In reflecting on the year of 2015, I am reminded of the visit Pope Francis made to the United States and how he made it a priority to visit prisons and how he spoke about criminal justice reform. The Pope did not quote statistics or debate policy in his speech to prisoners, instead Pope Francis focused on a personal message of hope and redemption. I hope that we will focus on a similar message of hope as we enter into a new year.

The Pope compared himself to prisoners stating in his speech at the correctional facility, “All of us need to be cleansed…I am first among them.” Pope Francis did not say “I could’ve been one of you,” instead he said to the men and women in prison, I AM one of you.

In America, we have 5% of the world’s population, but 22-25 percent of the world’s prison population. In 2014, the United States Justice Department reported that 1.35 million people are being held in state prisons in the United States. If you include inmates in federal prisons and local jails, that total number rises to roughly 2.3 million people who are incarcerated in the United States, meaning that almost one out of every 100 adults are in jail or prison.

The topic of criminal justice reform has hit the mainstream media, and it has started to generate bipartisan support–even uber- conservative Newt Gingrich agrees change is needed in this area.

Criminal justice reform does not mean that people who commit crimes should not face some type of punishment, and it does not mean that we should just open the prison house doors and release every person in prison tomorrow. But both sides of the political spectrum are starting to agree that we need a HUGE criminal justice overhaul. Change is necessary in almost every facet of criminal justice: who goes to prison, length of incarceration, and perhaps most importantly, rehabilitation and reintegration programs. The United States continually fails to have meaningful rehabilitation programs for prisoners, and we also fail to reintegrate people back into our communities to help them become productive members of society after release.

While in the United States this year the Pope said, “Any society, any family, which cannot share or take seriously the pain of its children, and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain.”

A few main reasons, statistics, and articles that demonstrate we have a problem in this country with mass incarceration:

(1) Poverty and the Children of the Incarcerated

A large percentage of the people who are imprisoned in the United States are also parents of minor children. When parents are locked up, that leaves children with one less wage earner in the home, and children in families with an incarcerated parent are more likely to live in poverty.

There are now 2.7 million minor children (under the age of 18) with a parent behind bars in the United States. Put in more concrete terms, 1 in every 28 children in this country–more than 3.6 percent now have a parent in jail or prison. 25 years ago, that number was only 1 in 125.

More than half of fathers in state prison report being the primary breadwinner in their family, the National Research Council report noted. Should the family attempt to stay together through incarceration, the loss of income only increases, as the mother must pay for phone time (which is very expensive in jail or prison), travel costs for visits, and legal fees. The burden continues after the father returns home, because a criminal record tends to injure employment prospects. Through it all, the children suffer.

(2) Racial Discrimination & Mass Incarceration

More than 60% of the people in prison now are a racial or ethnic minority. For black males in their thirties, 1 in every 10 is in jail or prison on any given day. One in three African American men born today will serve time in prison if current trends continue.

So what do we do about all of these statistics–statistics that are not simply numbers but represent human lives? True reform will only be accomplished if Americans confront and seek to change the things that caused the brokenness of our criminal justice system in the first place. In the words of civil rights attorney Bryan Stevenson, “I believe that so much of our worst thinking about justice is steeped in the myths of racial difference that still plague us.” Stevenson, Bryan. Just Mercy, (New York: Random House, 2014), p. 299.

“Going into any prison is deeply confusing if you know anything about racial demographics in America. The extreme overrepresentation of people of color, the disproportionate sentencing of racial minorities, the targeted prosecution of drug crimes in poor communities, the crimininalization of new immigrants and undocumented people, the collateral consequences of voter disenfranchisement, and the barriers to re-entry can only be fully understood through the lens of our racial history.” Stevenson, Bryan. Just Mercy, (New York: Random House, 2014), p. 301.

It is not possible to truly reform our justice system without reforming the institutional structures, the communities, and the politics that surround it.

In America, the men and women who find themselves in jail and prison are not picked at random. A series of risk factors–mental illness, illiteracy, drug addiction, poverty–increases one’s chances of ending up in the ranks of the incarcerated. “Roughly half of today’s prison inmates are functionally illiterate,” Robert Perkinson, an associate professor of American Studies at the University of Hawaii, has noted, “Four out of five criminal defendants qualify as indigent before the courts.” Prisons and jails draw from the most socioeconomically unfortunate among us, and thus take a particular interest in those who are black.

A number of sources and studies cite that although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have historically been black or Latino. Marc Mauer and Ryan S. King, Schools and Prisons: Fifty Years After Brown v. Board of Education, (Washington, DC: Sentencing Project, 2004), p. 3.

“The truth is that rates and patterns of drug crime do not explain the glaring racial disparities in our criminal justice system.” Alexander, Michelle, The New Jim Crow: Mass incarceration in the age of colorblindness (The New Press, 2010), p. 10.

People of all races use and sell illegal drugs at remarkably similar rates. U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Summary of Findings from the 200 National Household Survey on Drug Abuse, NHSDA series H-13, DHHS pub. no. MSA 01-3549 (Rockville, MD: 2001), reporting that 6.4 percent of whites, 6.4 percent of blacks, and 5.3 percent of Hispanics were current illegal drug users in 2000; Results from the 2002 National Survey on Drug Use and Health: National Findings, NSDUH series H-22, DHHS pub. no. SMA 03-3836 (2003), revealing nearly identical rates of illegal drug use among whites and blacks, only a single percentage point between them.

Bottom line, the overrepresentation of people of color in our criminal justice system and the disproportionate sentencing of racial minorities is one of the most broken areas of our system of mass incarceration, and we need to fix this problem in a BIG way.

(3) Paying their Debt Forever

“Once released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion.” Alexander, Michelle, The New Jim Crow: Mass incarceration in the age of colorblindness (The New Press, 2010), p. 13.

When my clients are convicted of a felony in state or federal court they are often advised by the Judge that they they will lose many of their rights as citizens: their right to vote, their right to serve on a jury, their right to public assistance or public housing. They lose these rights FOREVER. They will FOREVER be forced to “check the box” indicating they have a felony conviction.

Some people don’t have a problem with that system, and they talk about “choices” and “consequences.” I am not saying there should not be consequences to our choices. On the other hand, when people turn things around, when people make better choices, it seems that we as a society might be able to grant them some of their dignity back? One of the many problems with our current system of mass incarceration is this system is “based more on the prison label, not the prison time.” Alexander, Michelle, The New Jim Crow: Mass incarceration in the age of colorblindness (The New Press, 2010), p. 15.

“Across the nation there is a consistent theme: people with criminal records ‘need not apply’ for available jobs. Combine today’s tight job market, the upsurge in background checks, and the growing number of people with criminal records, and the results are untenable.”

In Steven Raphael’s paper on improving employment prospects for former prison inmates he states, “In 2007 over 725,000 inmates were released from either state or federal prison. Many of these individuals have served multiple terms in prison, cycling into and out of correctional institutions for much of their adult lives. Many have very low levels of education and little work experience, are disproportionately male and minority, and return to social networks with weak connections to the formal labor market. Not surprisingly, a high proportion of former inmates re-offends or violates the provisions of their conditional release, with the majority serving subsequent prison terms.” Raphael, Steven. Improving Employment Prospects for Former Prison Inmates: Challenges and Policy. National Bureau of Economic Research, (2010).

It is not surprising that many of the people released from probation or parole end up back in prison. According to a Bureau of Justice Statistics study, about two-thirds (67.8%) of released prisoners were arrested for a new crime within 3 years, and three-quarters (76.6%) were arrested within 5 years. Only a small minority were rearrested for violent crimes; the vast majority are rearrested for property offenses, drug offenses, and offenses against the public order. Travis, Jeremy, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2002), p. 32, citing Bureau of Justice Statistics.

(4) Looking for Solutions & Seeking Change

The National Institute for Justice defines recidivism as “a person’s relapse into criminal behavior, often after the person receives sanctions or undergoes intervention for a previous crime. Recidivism is measured by criminal acts that resulted in rearrest, reconviction or return to prison with or without a new sentence during a three-year period following the prisoner’s release.”

In an article for the Huffington Post, Paul Heroux discusses reducing recidivism:

“One of the obstacles to reentry support for ex-offenders is opposition from the public, which translate into political will, that thinks that inmates are getting something that the rest of us law abiding citizens aren’t getting. I’ve spoken with many people who say, 1) why should they get housing support, or job placement, or health care? 2) No one helps me with those things. 3) My son who just graduated from college needs a job; why should he be bumped in favor of someone who did a crime?

These are all legitimate and important concerns. A visceral reaction is that “we should just keep them locked-up” or “they screwed-up; too bad for them.” But keeping them locked up becomes impossibly expensive, and in not helping them be successful upon release we are not helping our communities.

My response to each of these includes: 1) because the chances of them reoffending is higher without support in these areas and it is cheaper to give them support than to deal with the consequences of a crime, which may or may not involve a victim. 2) True, no one helps you with those things so you know how difficult it is; now add to that a criminal record, no family and friends supporting you, and laws that prohibit you from working and living in certain places. And 3) your college graduate son is very unlikely to be competing with an ex-con for a job so it is unlikely that your educated son will lose an opportunity over one afforded to an ex-con. Even if your child didn’t go to college, your child is likely in a very different vocational place than an ex-offender.”

Seeking ways to prevent people from reoffending helps ALL of us.

So what programs have been shown to help prisoners NOT recidivate?

A few examples and ideas on reducing recidivism:

I do not have the ultimate answer to fix the complex brokenness we face in our criminal justice system. However, my hope is that we start to acknowledge the brokenness more. In doing so, we can seek change and healing that will not only help those in the system, like my clients, but also heal and change entire communities.


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