Criminal Justice in Divided America: Can Democracy Survive a Broken Justice System?

David Sklansky: If you were going to design a process to try to build the skills and habits for democratic citizenship, it would look a lot like a jury. You’d want something where you bring people together from across social divides and ask them to reason together, based on evidence, and arrive at agreed-upon facts.

And in fact, when people serve on juries, particularly criminal juries, it does seem to increase their trust in institutions and their commitment to democratic processes. People vote more often in elections after they’ve served on criminal juries.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. Today, our guest is my colleague David Sklansky, who’s the Stanley Morrison Professor of Law and also one of the faculty co-directors of the Stanford Criminal Justice Center.

We’re here to talk about his new book entitled Criminal Justice in Divided America, Police, Punishment, and the Future of our Democracy, and it’s being published by the Harvard University Press. Welcome, David. 

David Sklansky: Thanks for having me. 

Pam Karlan: So, the book title is Criminal Justice in Divided America, but you recently also wrote an article that I think is taken from the book, called How Criminal Justice Helped Break American Democracy. So, what was the impetus for writing the book? 

David Sklansky: I’ve been thinking for some time about the connections between two crises in the United States, the crisis of criminal justice and the crisis of democracy. It has seemed to me that these two things are linked. And I wanted to talk about why. 

Pam Karlan: So, this takes me back to a really early article you wrote that was one of the most interesting articles I’ve read, but also one of the best written pieces of legal scholarship I’ve ever read. And I should say to our listeners that even if you’re not a lawyer, or even if you’re not a lawyer interested in criminal justice, David is such a beautiful writer. You should read anything he writes. 

David Sklansky: They can’t see me blushing.

Pam Karlan: But this was the piece you wrote, and you quoted at the beginning of it, Robert Pinsky, the Poet Laureate, who said: “A country is the things it wants to see.” And then you wrote about the incredibly huge disparity in  crack and powder cocaine sentences, and what that told us about equal protection. And so I thought we might kind of start here, with all of the problems in criminal justice, with the problem of democracy and its effect on substantive criminal law.

David Sklansky: Yeah. So, that article was about the failure of the courts to adequately ensure that criminal law applies equally and isn’t racially discriminatory. And it used the example of the disparity in sentences between what federal law provided for powder cocaine and what it provided for crack cocaine to illustrate problems with equal protection review of criminal statutes.

The problem there was that the sentences for crack cocaine were vastly more onerous than the penalties for powder cocaine, and the penalties for crack cocaine were imposed almost entirely on black defendants. White defendants caught with cocaine were almost always prosecuted for having powder cocaine. And I thought, and still think, that the fact that this didn’t raise equal protection problems under federal constitutional law showed weaknesses in federal equal protection law. So, there’s a way in which that article was typical of discussions of the relationship between criminal justice and democracy. It was typical in that it tried to figure out what courts can do to make the system fairer and live up to democratic values. And it was part of a debate about whether judicial review, judicial oversight, is anti-democratic because judges are unelected, or whether it’s pro democratic because it can help to safeguard democratic values. 

This book tries to look at some other connections between democracy and criminal justice, not whether popular votes and popularly elected politicians are dangers to humane and fair criminal justice, but whether criminal justice policies–and the failure of criminal justice policies–have contributed to the ways in which democracy has eroded in the United States, and I believe that it has.

Pam Karlan: Yeah. So, you spend a bunch of time talking about policing itself and the kind of failures of policing and the ways in which it’s increasing our polarization. Can you say a little bit about that? 

David Sklansky: Sure. So, lots of things contributed to Donald Trump’s election last fall. But one thing that I think lots of evidence suggests is that a big contributor to his victory was a lack of confidence in American institutions, pessimism about the ability of government to perform basic tasks entrusted to it. And that’s a pessimism that polls show cut across the political spectrum. It’s shared by Trump supporters and by many people who are strongly opposed to Trump. And I think that that kind of pessimism was fueled disproportionately over the last several decades by failures in the criminal justice system.

The criminal justice system has failed to keep people feeling safe, and it has failed to treat people in ways that are fair and seem fair. This happened spectacularly in the late 1960s and early 1970s, where crime rates skyrocketed and police repeatedly violently abused political protesters and African Americans. And the result was the politics of crime, which, beginning in the early 1960s and continuing through the 1970s and the 1980s, really fueled, I think, the rightward shift of the Republican Party. When the Republican Party began its long march towards the extremism that Donald Trump reflects, it was fueled by the emergence of crime for the first time as a significant issue in presidential campaigns. And it continued to be fueled. The fear of crime and the politics of crime continue to fuel the rightward move of the Republican Party throughout the 1960s, the 1970s and the1980s. At the same time, abusive police practices contributed significantly to disenchantment and disillusionment with legal institutions among African Americans and other members of other racial minorities.

And when the Democratic Party tried to match the Republican Party’s efforts to capture “tough on crime” voters by sponsoring draconian criminal justice legislation, the result, I think, was a spiral of fear in which the parties competed with each other to offer the harshest sentences and toughest criminal justice practices possible, with the result that not that people got safer, but that they got … we got more and more afraid of each other, and civil institutions corroded. The one bright spot in that story, oddly, was policing. From the 1980s through the 1990s, policing got much better, and it got much better because of policies that were adopted with broad bipartisan support.

And in the communities where policing got better, there was a dividend not only in public safety, but in public confidence in government, in trust in civic institutions, and in the capacity of people at the local level to reach out across political boundaries and work together to reform all kinds of government institutions, not just policing.

Most of those successes in policing had to do with the community policing movement, which for reasons I discuss in the book, ultimately lost widespread political support and fell into disrepute. 

Pam Karlan: So, what is community policing as opposed to other kinds of policing? What does that mean?

David Sklansky: Well, that’s a good question. And at the time when community policing was most popular, that is to say the 1980s and the 1990s into the early 2000s, one knock on it was that the phrase “community policing” was ambiguous and meant different things to different people. And every police department in the country at one point or another was claiming to do community policing, in part because federal funds became tied to adopting community policing policies, so every law enforcement agency said, “Oh, we are doing community policing.”

Nonetheless, I do think that there was some content there, and the content was that police departments should work with communities as opposed to seeing themselves as a thin blue line that operated outside of communities. That meant that police departments should consult with and partner with other government agencies and civic groups, groups of residents, and lots of police departments engaged in precisely this kind of activity: outreach, partnering, assigning officers to walk beats as opposed to just sit in police cars to make sure that they heard from residents, so that the police departments could try to respond to the concerns that people in the places that they police had, and could work with those people to help make their communities safer and more attractive in all kinds of ways.

Pam Karlan: Yeah, I mean, one of the things you say is that even when they tried to work with the communities, there was this odd skew, which is they were more likely to work with older residents, they were more likely to work with homeowners and business owners than they were with younger residents or with the … you know, one of the other things that obviously happened in the 1960s and 70s with the deinstitutionalization movement. So to work with people who were on the street with mental health issues and the like. And is there a way of dealing with that failure? I mean, do you have proposals of what you would do? Other than the first generation of community policing. 

David Sklansky: Yeah. So I think that the main defect in the first generation of community policing was a impoverished picture of a community, an oversimplified picture of the community. There was an idea: It was easy to identify who was in the community and everybody who was in the community tended to agree about things. So, you didn’t need to really worry about divisions within the community. You just needed to consult with the community. And that meant that the police wound up consulting with the parts of the community that they felt most comfortable with, and that were easiest to organize, and that had the most time on their hands to hang out and talk with the police. So, that was homeowners, business owners, older people, and the groups that were left out of this picture were disproportionately young people and people who were in one way or another disorderly or less connected to property in whatever jurisdiction we’re talking about. And that was a fatal mistake, not just because young people have distinct concerns, but because there was one particular set of concerns that young people shared … had disproportionately, and that was police violence. And because community policing relied so heavily on contacts with older people, and property owners and business owners, the community policing movement was almost blind to the problem of police violence, and that’s a large part of what discredited it ultimately on the left. 

Once cell phones proliferated and the video footage that cell phones could produce proliferated, it became harder and harder to ignore the problem of police violence, and then news organizations began to count up episodes of police violence, and it turns out that we have horrific levels of police violence in this country.

About a thousand people a year in the United States are killed by the police, which is vastly more on a per capita basis than any country that we’d want to compare ourselves to. And the community policing movement had said almost nothing about this problem. And it’s part of why, for a generation of activists that came to age in the end of the first decade of the 21st century, and then during the 2nd decade of the 21st century, community policing didn’t speak to them. It seemed like a kind of namby pamby defense of the status quo. 

Pam Karlan: So this might be beyond the scope of your book, but it’s obviously part of the part of democracy more generally is: do you think the level of police killing of civilians in the United States is a product and part of our very lax gun laws, which allow police …  I mean, I just watched a video that the New Yorker had about this, allow police to always claim they thought somebody was going to pull a gun on them. And in other countries where people are not carrying guns on the street or where the courts have not struck down what seemed to me to be perfectly rational laws, you know, restricting concealed carry on the streets, police would be less worried. 

David Sklansky: Yeah. Guns are absolutely a big part of this. And it’s not just that the police can say we were fearful.

Pam Karlan: I mean, they often are fearful. 

David Sklansky: And they have good reason to be fearful. So yeah, I mean, the fact that we’re awash in guns and that the Supreme Court has said that that’s what our Constitution protects your right to carry around a handgun at virtually any time. Yeah, that’s a big part of the problem. But it’s not the entire problem, and we know that because of the thousand or so people who are killed every year by the police, about a hundred of them every year are people that the police know don’t have a gun or are confident don’t have a gun. And these are largely people who are in mental health distress and have some kind of a knife or a blade.

And the thing is, those are situations that happen regularly in other countries, and when these situations happen in other countries, nobody winds up being killed. And when they happen in the United States, very often someone winds up being killed. And that has nothing to do with the police fearing guns. It has to do with how we train police, and what the police do when they respond to a situation of that kind. 

Pam Karlan: I mean, it seems to me part of it is we ask the police to do something that really isn’t a kind of traditional policing job, which is to deal with the mental health crisis in the United States. 

David Sklansky: We … yeah, we ask the police to do all kinds of things that you might not think are traditionally part of the police job, and part of the … one part of the of the community policing movement was an effort to try to share some of those jobs with people other than the police who might be better at them. One reason why community policing lost favor on the left was there were a lot of people who think it was a mistake to have the police involved at all when people are in mental health distress. You don’t want the police there at all when people without housing have to be serviced or have problems. You don’t want the police there….We don’t want the police to deal with problems in schools at all. And I think that that sentiment can be taken too far because it’s a mistake to try to limit the police only to patrolling and responding to serious crime.

For one thing, it turns out that the police are pretty good at helping with lots of other problems. And it turns out that it’s important to have the police in regular contact with people, and to build trust with people. And one way you build trust with people as you help, as you help them with things that are of concern to them. So I think the real problem in many of these hundred or so cases every year where the police kill people in mental health distress who wouldn’t be killed in other countries, isn’t that the police aren’t involved, it’s that they have sole responsibility and that the officers who are sent to respond often aren’t trained in proper ways of responding to people in mental health distress. There are lots of those situations where you probably could respond and should respond. And some, in some places in the United States there are communities that do respond without the police to some people in mental health distress.

There are going to be a lot of other cases, though, where it’s scary for some reason, and people want to know that there’s somebody there who can handle things if things get dangerous. So, it’s important that you have police who are trained and can operate in a way that provides for the ability to use force if it’s necessary, but that doesn’t go to the use of force when it’s unnecessary, which is what happens all the time in the United States.

Pam Karlan: And listening to what you just said, David, I was struck by the question … a question whether we don’t have too many police departments in the United States, that is we’ve just decentralized police down. So, you have a ton of very small departments in the country where they don’t really train officers. You have bad apples who are fired from one department or another and get a job someplace else and then, you know, engage in more violence. And I keep thinking about a case I teach in the criminal … I mean, in the constitutional adjudication class. It involves a sheriff in Oklahoma who hires his ne’er do well nephew, who had a bunch of disorderly conduct convictions and the like, and sure enough, the guy doesn’t watch the videos, which are the only training he was supposed to have. He doesn’t really watch the videos. And then he drags a guy out of his car for a minor moving violation and breaks both of the guy’s kneecaps. And so this kind of failure to train and failure screen: What do you what do you make of that? Do we just have too many police departments relative to other countries that have a more centralized form of training and certification? 

David Sklansky: Yeah, we have too many police departments and too many small departments. It creates the problems of training that you mentioned. It also has created this weird dynamic where lots of little departments think they they need their own SWAT team and once a SWAT team is created, people …   It’s hard not to use that. Yes… 

Pam Karlan: And also some of these departments make a lot of money off fines and fines and fees, right?

David Sklansky: That’s true, too. I think restructuring, changing the number of police departments in the United States is high-hanging fruit. It’s going to be hard to achieve. And fortunately, there’s all kinds of things that you can do to improve policing that doesn’t require that. First of all, an enormous … a disproportionate amount of the worst kinds of policing happen with larger departments, police departments and large sheriff’s offices. And second, there’s a lot that state attorney general’s offices and the federal department of justice can do to coordinate. how local how, how small departments operate. So, I think yes, in an ideal world, we’d have fewer small departments and fewer to police departments overall in the United States, but that’s a reform that I think is hard to achieve.

Pam Karlan: I want to turn now to another aspect of your book that I think is really important and provocative, and that is when we think about kind of democracy and people’s ability to influence the criminal justice system, we don’t talk enough about the jury, which is probably one of the most underrated pieces of our democratic apparatus. And yet you think we should be having many more trials and fewer plea bargains, in part, I think, so that more people would be involved in the jury process?

David Sklansky: Yeah, I do. Every year, I ask my students how many of them have served on juries. I just started teaching criminal law last week. I have 60 really smart young people in my criminal law class. Not a single one has served on a jury. And this is typical. It’s rare for Stanford Law students to have ever served on a jury. And that’s…

Pam Karlan: They better do it before they become lawyers, because after, it’s harder to stay on the jury, right? 

David Sklansky: It can be. Yeah. And if you were going to design a process to try to build the kinds of skills and habits for democratic citizenship, it would look a lot like a jury. You’d would want something where you bring people together from across social divides and ask them to reason together, based on evidence, and arrive on agreed-upon facts. And in fact, when people serve on juries, particularly criminal juries, it does seem to increase their trust in institutions and their commitment to democratic processes.

People vote more often in elections after they’ve served on criminal juries. But the process doesn’t work as well as it should. First of all, because we don’t have enough trials, and we don’t have enough trials because we rely so heavily on plea bargains. And then we also don’t do a good enough job ensuring that a broad cross section of the American public gets enlisted in jury service.

And the fact that none of my students ever have served on juries by the time they’re in their early twenties is a good example of that. And it that’s partly because we’ve never treated recruitment of jurors and the jury processes as a high-priority item. We have a constitutional right to jury pools that that reflect a fair cross section of the public, but that constitutional right is poorly enforced by courts, and we don’t have any kind of history or practice of trying really hard to make jury duty available, accessible, and attractive to people.

Pam Karlan: Yeah, I mean, that’s one of the things about, you know … obviously there’s some people for whom jury service is not a burden, either because they’re not working or because they work in a job where their employer, either as a matter of collective bargaining or commitment to the process says, we’ll pay you anyway, but I remember there’s an old Supreme Court fair cross section case that was about the exclusion of people who were paid by the hour from juries. You may remember this and the court holding that that was part of the fair cross section requirement. 

David Sklansky: Yeah, I think if you think about what it would mean to have a fair cross section, you don’t want just retirees. You don’t want just people who don’t have obligations at home. You don’t want just people who have not had any experience with the criminal justice system. And if you want to include people like that in the jury system, you need to do a vastly better job than we do of making sure that jury summons are sent in a fair way to people in the community, that if somebody has care obligations, that they’re offered some assistance so they can serve on the jury. If they need help getting to the courthouse, we can get them to the courthouse. And lots of people work … have jobs that don’t pay them if they have to take time off…

Pam Karlan: Right. If you don’t show up to work. 

David Sklansky: Yeah, and it doesn’t help very much if the response of the system is, well, we’ll pay you a dollar for every day that you serve on a jury, which often is close to the response of… 

Pam Karlan: And we almost always….I mean, I know for federal juries, it’s based on voter registration, and in most states, they supplement that with DMV. But again, that’s going to skew towards people who actually have driver’s licenses. And especially this goes back to what you were saying earlier. If you’re talking about urban young people, they’re disproportionately unlikely to have driver’s licenses. And that’s even more so in the generation that uses Uber to get around.

David Sklansky: Right. And huge numbers of jury summonses are just never responded to, partly because they often don’t reach the people that they’re sent to. And we, we do almost nothing to ensure good follow up there. So, if we thought about jury service in the way we think about, say, cell phone service and, and, and made a serious effort to try to make it better so that it reaches people and so that it’s effective, and we compared what different jurisdictions did and tried to find out which jurisdictions do a better job of this. What are they doing? That would be a huge advance. We don’t do any of that because we don’t treat juries seriously as democracy-building institutions, and we should. 

Pam Karlan: Yeah, I mean, I did jury does seem to me  … and I was fascinated by your statement that jury people who serve on juries are more likely to vote after they serve than people who don’t serve on juries. 

David Sklansky: Yeah, it’s a robust finding. We’re pretty confident it’s true. But it is not, by a wide measure, the most dramatic change in people after they serve on juries. The most dramatic change in people, by a wide measure after they serve on juries, is they are vastly more positive about the jury system. So that makes them more positive about government institutions in general, but it also tells us something about the jury system, that people who actually serve on juries are quite positive about the experience. And that includes people who serve on juries that deadlock. In fact, when you look at the effect of jury service on people who on voting rights after people serve on juries, the strongest effect is seen on among people who serve on juries that try to reach a verdict but fail to reach a verdict because those are juries that wind up spending a lot of time talking to each other. And even though they fail to reach a verdict, people leave that experience more committed to the democratic enterprise. 

Pam Karlan: And one other thing …  I’ve been recently listening to a couple of CLE tapes and like that were talking about some studies done and these are done with I think these are done with mock juries, but it turns out that a mock jury that’s made up of people of different races and different backgrounds spends more time deliberating and ultimately does a better job. Do you think that that’s also a message that people come out of these juries with? Is that they have now been forced to sit in a room and actually talk through some issue with people very different from them along a variety of dimensions? 

David Sklansky: Yeah, I do think that. And there’s some evidence for this too, that it makes people realize that it is possible to have a discussion with people who have a different background than yours, may have different politics, different religion, different race than yours–to have a discussion about what the facts are and to use evidence to try to arrive at a collective decision that you can all agree to.

That’s an important lesson for people to come away with because to a great extent we’ve lost that … happened in this country of arguing about politics in, in productive ways. I mean, most people I know try hard to avoid discussions of politics with anybody that they disagree with. 

Pam Karlan: Well, David, this has been just incredibly fascinating, and I want to have you back to talk more about your book because there’s … it’s so much other rich stuff in it.

We’ve been talking with David Sklansky about his new book, Criminal Justice in Divided America: Police, Punishment, and the Future of Our Democracy. This is Stanford Legal. If you’ve enjoyed the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us.

I’m Pam Karlan. See you next time.