Saving the Criminal Justice System

When the wheels came off the U.S. economy in late 2007, it was no wonder law enforcement leaders feared that a spike in crime would be close behind. Unemployment and home foreclosures shot up, while tax revenues to support education, substance abuse and mental health services, job training, recreation programs, and other known crime-busters plummeted. What’s more, the overcrowded conditions in many U.S. prisons started boiling over. In California, for example, where Governor Arnold Schwarzenegger had declared a “Prison Overcrowding State of Emergency” in 2006, a federal court finally stepped in and in 2009 ordered that the population of the state’s three adult prisons had to be cut drastically (to a mere 137.5 percent of their originally designed capacity) within two years. Although the U.S. Supreme Court has agreed to hear an appeal on whether those judges had the right to issue such an order, the state’s options seemed to be either new prison construction—unfundable in this economy—or the early release of more than 40,000 prisoners.

A panel from a superhero comic. The background text reads, "Later, at the state capital...", a finger points at Captain Lock-Em-Up, a masked superhero, accusing "Our prisons are overcrowded, our communities are suffering, and our budget is busted! And it's your fault!". Bewildered the superhero defends, "But I thought everyone loved me..."
Illustration by Steve Vance

All this was especially daunting for a criminal justice system already widely seen as broken. The United States has the highest documented per capita incarceration rate in the world; in 20 years the number of inmates in state and federal prisons increased from 200,000 to more than a million and a half, with another 700,000 in county jails. Prison expenditures will cost taxpayers $75 billion annually by 2011, but the social cost of what is often called “mass incarceration” also has been profound. The racial profile of inmates is disproportionately weighted to young African-American males. Michelle Alexander ’92, associate professor of law at The Ohio State University Moritz College of Law and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, notes that there are more black men imprisoned or on parole or probation today than were enslaved in 1850, more than 10 years before the Civil War began. Meanwhile, recidivism numbers make it clear that what the prison system has been doing with offenders isn’t working. Instead it has produced an enormous and expensive criminal class of largely addicted, poorly educated, disenfranchised individuals with few options to lead a lawful life when they are released from prison. According to a recent Department of Justice report, roughly two-thirds of released prisoners are rearrested within three years after release and more than half (52 percent) are returned to prison.

Yet despite the sputtering economy, crime rates, on a steady decline since 1992, have stayed low, at least so far. And that has created a remarkable opportunity.

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Until now, policymakers have been reluctant to entertain a cost-benefit analysis of the “tough on crime” policies that have led to an unprecedented prison population explosion. However, severe budget pressures across the country are inviting a new, nonpartisan conversation about criminal justice. Policymakers are eager for empirical data from academics and policy think tanks that may offer solutions—and also help answer this key question: Are we receiving an adequate return in terms of public safety on the huge investment we are making in law enforcement and incarceration? Together, these factors have created a climate in which lawmakers are receptive to considering new ideas and reforms involving such issues as sentencing laws, the structure of courts, and breaking the cycle of crime—particularly with nonviolent offenders. And the debate about hot-button issues such as capital punishment is also shifting. Increasingly, the focus of critics has turned to whether the staggering amount of money it costs to keep the death penalty on the books actually makes us safer.

The shift is quite profound. “There used to be a theology that we don’t engage in cost-benefit analysis when it comes to criminal justice—we just spend what it takes. Well, when times are difficult, criminal justice becomes a significant factor in budgets. What’s happened is that the political demagoguery about crime has calmed down substantially because the crime rates are relatively low,” observes Robert Weisberg ’79, Edwin E. Huddleson, Jr. Professor of Law and faculty co-director of the Stanford Criminal Justice Center (SCJC). The public’s far greater preoccupation with economic issues has “created a little space where we can think more rationally,” he adds. “It’s a weird almost-perfect storm.”

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Watch a conversation between Weisberg and Petersilia.

Perhaps the most visible development came in August, when President Barack Obama signed into law the Fair Sentencing Act, which sought to reduce the extraordinary sentencing disparity that had existed for individuals in possession of crack cocaine versus powder cocaine. In the mid-1980s, new laws triggered mandatory minimum five- and 10-year sentences for possession of just 5 and 10 grams of crack cocaine; those same minimums did not kick in for possessors of less than 500 grams of powder cocaine. Although it took several years and some compromises (the new law still has an 18:1 disparity), the fact that this legislation passed with bipartisan support and the blessing of such staunch conservatives as Utah’s Senator Orrin Hatch and South Carolina’s Senator Lindsey Graham was striking. Crack cocaine use is far more prevalent among black Americans, while most powder cocaine users are white. The sentencing disparity “was devastating to the legitimacy of the federal justice system,” observes George Fisher, Judge John Crown Professor of Law and Criminal Prosecution Clinic faculty co-director. “A consequence of this penalty scheme has been the disparity in the racial composition of prisons.  I think this racial disparity is opening people’s eyes and minds.”

The House also passed the National Criminal Justice Commission Act last summer, which would create a bipartisan blue-ribbon commission designed to conduct a thorough review of the criminal justice system (currently pending Senate approval). Notably, House sponsor William D. Delahunt (D-MA) focused on costs in his statements about the bill: “Today our prison population is expanding at an alarming rate, with costs to the taxpayers that are unsustainable.” Mariano-Florentino Cuéllar (MA ’96, PhD ’00), Deane F. Johnson Faculty Scholar and professor of law, has advised the Obama administration on justice and regulatory policy. He observes that growing evidence of effective programs in many cities across the nation is helping garner support for reform, as policymakers “are increasingly realizing that public safety goals can be very well served by cooperation between civil society and law enforcement.”

Photo of Petersilia and Weisberg, seated in Robert Crown Law Library.
“There used to be a theology that we don’t engage in cost-benefit analysis when it comes to criminal justice—we just spend what it takes. Well, when times are difficult, criminal justice becomes a significant factor in budgets.” Robert Weisberg ’79, seen here with Joan Petersilia (Photo by Angela Wyant)

What’s also helping, according to renowned criminologist Joan Petersilia, Adelbert H. Sweet Professor of Law and faculty co-director of the SCJC, is that rehabilitation itself has been subjected to more rigorous analysis, and we have increasingly strong evidence about what works and what doesn’t. Rehabilitation used to be considered at least an equal partner to retributive punishment in the U.S. penal system, but it fell out of favor in the 1970s and largely disappeared as a priority as the war on drugs and tough-on-crime political rhetoric escalated in the 1980s. By the 1990s, prisons were so crowded that classrooms were stuffed with bunks and education and other programs were drastically reduced. Nonetheless, sociologists, progressive judges and prosecutors, and others continued to experiment with programs designed to try to at least short-circuit the criminal careers of young offenders before they become lifetime criminals. “We are starting to amass a large body of scientific literature on evidence-based practice and how to approach rehabilitation,” says Petersilia. Perhaps just as significant, political leaders are more interested in gathering that data to inform policies aimed at lowering recidivism in the offender population. Petersilia, for example, was invited by Governor Schwarzenegger to advise on the substantial 2009 reforms to the state’s parole system. And data gathered by Petersilia and her colleagues here at Stanford Law School have influenced major legislation in the state, covering various aspects of corrections reform, from funding for community corrections to re-entry centers, rehabilitation programs in prison, and more.

“States across the U.S. are searching for cost-effective prison and parole programs, and criminologists and members of the legal academy are finding themselves increasingly valued partners in the policy discussion. When we can combine the legal and analytical skills that are now present at Stanford Law School, we have a unique opportunity to change the nature of the debate and possible policy solutions,” she says. “More broadly, the academy is taking a higher-profile role in these conversations.”

A big challenge for academics and lawmakers alike is recidivism. Here too, the statistics are grim: three quarters of those leaving prison have a history of substance use disorders and two in five prison and jail inmates lack a high school diploma. In September of this year, 50 judges from across California converged on the Stanford Law campus for a three-day conference, sponsored by SCJC, on Federal Re-Entry Courts. Weisberg, Petersilia, and other experts in the field shared their research with judges on the front lines—exploring the possibilities these courts may offer and ways to tackle this problem. But here the individual judges can and are making a difference.

All Rise

Photo of Manley, seated at a judge's podium.
“I believe that if judges accepted more responsibility for outcomes, we would see a lot more evidence-based judging.” Judge Stephen V. Manley ’66 Santa Clara County Superior Court (Photo by Angela Wyant)

At first glance, Santa Clara County Superior Court Judge Stephen V. Manley’s San Jose courtroom has the standard trappings: a jury box, an armed bailiff, a busy clerk with piles of paper on her desk. But to the right of the judge’s bench is a pile of hand-crocheted baby blankets. The judge’s bulletin boards hold a few unexpected items as well, including a printout in large type of William Ernest Henley’s “Invictus” poem, with its inspiring ending, “I am the captain of my soul.” The lanky Manley ’66, wearing his signature black eye patch, explains that those baby blankets help drive home personal accountability among offenders; for one thing, he lets them pay fines and fees by crocheting blankets for local hospitals, which as many men as women do regularly. “We can tell if they’re machine-made,” he says.

Since the mid-1990s, Manley has been trying to transform his corner of the criminal justice system into something other than just one stop in a chain of handoffs, and he has been a pioneer in so-called specialty courts. In 1998 he created California’s first dual-diagnosis drug and mental health court. Today, there are thousands of specialty courts nationwide focused on a range of issues including truancy, drug addiction, child protective service violations, domestic violence—even a special court for fathers being released from incarceration. Law enforcement and community services with unique expertise in specific issues are vital to getting certain kinds of defendants to change their behavior; specialty courts tend to bring both enforcement and services together. In San Francisco’s “Back on Track” program for first-time drug offenders, judge-supervised re-entry is a key component; it also uses community-based job training, GED classes, and other supports, all managed by the district attorney’s office, to reduce recidivism in its graduates to less than 10 percent in a population where recidivism typically tops 50 percent. In Santa Clara County, Manley is launching a special court for veterans, too, many of whom are suffering from post-traumatic stress disorder that is exacerbating issues with drugs or anger and ultimately landing them in jail. “What we do too often is live in our own domain. Police arrest, prosecutors convict, judges sentence. We just don’t ask, ‘Does the person change his behavior? Stop taking drugs? Stop behaving in a violent manner?’ Nobody is accountable for that,” says Manley. “I believe that if judges accepted more responsibility for outcomes, we would see a lot more evidence-based judging.”

In 2009, Manley drafted legislation to replace parole for some offenders with a high risk of recidivism with re-entry courts where these offenders would have to check in with a judge in their community who could mandate drug treatment and other interventions—or send them directly back to prison for noncompliance. In the last year, legislation creating these re-entry courts passed and won $10 million in federal stimulus funding. “We finally got seven parolee re-entry courts approved and funded. The present system is bankrupting the state. This is a major reform but I don’t think it would have been possible if not for this budget crisis,” says Manley.

Climate for Change?

Weisberg notes that there has long been a division in the focus of academic research as it relates to crime—and that has created some disconnects in the nature of the “evidence” marched out to support good policy. “Traditionally, crime policy studies have been done almost exclusively in criminology and sociology programs,” he says, while law schools tended to be interested in constitutional implications of criminal laws. But institutions such as the John Jay College of Criminal Justice in New York have produced some leading justice innovators whose work is getting far more attention today. And law schools are becoming more interested in criminal justice policy. Stanford’s now six-year-old SCJC is the new model—explicitly focused on supporting evidence-based criminal justice policy.

Two U.S. Supreme Court decisions have stimulated important academic study as well, according to Weisberg. In two significant cases, Blakely v. Washington (argued by Jeffrey L. Fisher, associate professor of law and co-director of Stanford’s Supreme Court Litigation Clinic) and United States v. Booker, the court invalidated a number of rigidly structured schemes (including the notoriously rigid Federal Sentencing Guidelines). In the wake of those decisions, academics have been prolific in proposing and debating new sentencing models for legislatures to consider. Academic interest in sentencing at Stanford and other law schools has been further stimulated as issues of racial disparity and mass incarceration have become more prominent and amid growing evidence that federal judges are sometimes widely divergent in their adherence to federal guidelines.

There is no question that “three strikes” laws and long mandatory minimum sentences have filled the prisons. Initially passed with the intent of locking up violent criminals, the legislation has affected far more nonviolent offenders than voters may have anticipated. Many have noted that mandatory minimums have shifted discretionary power away from judges to prosecutors who are, largely, anxious to keep it. Indeed, it’s difficult to unwind many of the consequences that the embrace of long sentences has put into motion. Prison building delivered huge numbers of jobs to many states as well as lucrative contracts to prison guard unions, food suppliers, communications companies, and health-care providers for services to those prisons. “A multitude of interests are invested in mass incarceration now,” says Alexander. “We have a punitive impulse that is deeply ingrained in the culture and economic system. If we were to return to the incarceration levels of the 1970s, we’d have to release four out of five prisoners, so I don’t see that happening. We may be reaching a tipping point in the sense of rapid expansion in prison population, but it’s likely to be followed by an unconscionable plateau. I don’t see anything less than a major social movement ending mass incarceration.”

If lower crime rates are creating at least some political cover for discussion of reforms and new ideas, however, a legitimate question is why exactly did they decline.

Experts debate that intensely. John J. Donohue III, C. Wendell and Edith M. Carlsmith Professor of Law, along with University of Chicago economist and Freakonomics co-author Steven Levitt, made the controversial argument that the increase in abortions after the 1973 Roe v. Wade decision steadily reduced the population of young males likely to commit crimes. Others argue that crime rates are down precisely because of mass incarceration—long sentences meant both violent offenders and nonviolent drug offenders who might otherwise have escalated their criminal behavior are already locked up.

Weisberg says both factors appear to play some role, but so do improved policing strategies in previously high-crime communities and the decline of crack cocaine use. “The increase in imprisonment probably does not contribute more than 20 or 30 percent” to the decline in crime rates, he believes, “but we really aren’t entirely sure what the other 70 or 80 percent is due to.” Still, policymakers say it will be vital to closely monitor the effects of all reforms and changes on crime rates. “The challenge is to unwind the excesses while keeping the crime rates down,” says Jonathan J. Wroblewski ’86, director of the Office of Policy and Legislation in the Criminal Division, U.S. Department of Justice.

New Strategies

Tight budgets have prompted another intriguing strategic tack in debates over one of criminal justice’s perennial hot buttons: capital punishment. In California, the American Civil Liberties Union (ACLU) recently launched a campaign called “CUT THIS: The Death Penalty”—directed to budget-weary state leaders. A video released on YouTube features law enforcement veterans, former inmates wrongly convicted of crimes, and even family members of murder victims urging the abolition of the death penalty in favor of life without parole and use of those funds for other law enforcement purposes. Natasha Minsker ’97, death penalty policy director for the ACLU of Northern California, says the far higher cost of maintaining a death row inmate compared with keeping those prisoners in the general population, the high costs of publicly funded appeals, and the higher initial cost of capital trials will hand California taxpayers a bill for $1 billion in the next five years. “The public has a misconception that it’s cheaper to execute people. Since 1976, we’ve had 1,000 death sentences in California but only 13 people executed. In this time of budget crises, people still get this fact wrong.” Minsker notes that within the last two years, bills proposed in Kansas and in Colorado abolishing the death penalty in favor of life without the possibility of parole and reinvesting the money saved in solving unsolved murders were only narrowly defeated.

Lawrence C. Marshall, David & Stephanie Mills Director of the Mills Legal Clinic, associate dean for clinical education, and professor of law, adds, “The economics are beginning to convince a lot of folks who aren’t ideologically opposed to the death penalty that it’s simply a luxury we can’t afford. I think this has some resonance in regard to the three strikes law as well. It was designed to get rapists and murderers off the streets, but the net was cast too widely. It just doesn’t seem sensible to anyone who hears there is no money for schools, for police, or to fix the streets, that we are going to spend $2 million to keep a nonviolent petty criminal, like the sock thief we represented, in prison for the rest of his life because it’s a third strike.”

Not everyone believes a million reform flowers are poised to bloom, however. Many prosecutors and others believe the system we have today is not going to change dramatically anytime soon. Says Michael Hestrin ’97 (MA ’97), senior deputy district attorney of Riverside County, California, “The hard question for prosecutors is what to do with the persistent, nonviolent drug offender. The recidivism is so severe and I’m not sold on the idea that we just treat this as a disease. There are diversion programs and other approaches, but they cost money too and right now the state is broke.”

“To the extent that economic drivers fine-tune the system but also make sure we incarcerate people who show no promise of rehabilitation, that’s a fine and good exercise,” says Carol Lam ’85, a former state judge and United States Attorney in San Diego who is now senior vice president and deputy general counsel at Qualcomm. “But a big issue is that the penal system does not work efficiently as a whole. It’s administered in disparate pieces. It’s not run like a corporation where a CEO makes decisions for the whole system.”

Weisberg and Petersilia have also warned in a recent article in Daedalus, the journal of the American Academy of Arts and Sciences, that if states go too far to relieve budget stress with unstructured and unfunded prisoner releases, “we might face high recidivism in the coming years, and we will enter another dismal cycle in which ‘nothing works’ will be the old-new mantra.” Petersilia says research shows that effective programs, particularly for substance abuse treatment, may be cheaper than recidivism in the long run, but they are not inexpensive. Thus, the same economic drivers ripening the political climate for new ideas could backfire. “If we release people from prison but the funds don’t follow them, it’s not going to work.”

In California, the threat of mass prisoner release still looms but has not yet come to pass. Experts inside the system say many small changes in policy are resulting in reductions in the inmate population. For example, one element of 2009 corrections reform legislation increased the value of goods that represent a felony theft from $400 to $950 (since only felonies trigger three strikes treatment, this reduces the population of offenders who become eligible for the longest sentences). In any case, the next few years will be a critical time to see if we can move toward a more cost-effective system—or if the most common metaphor for this harsh realm of steel-barred cells and misery remains the relentlessly revolving door. SL

The Statistics

1 in every 12 African-American males ages 18 to 64 is incarcerated
• 47 percent of CA inmates are imprisoned for nonviolent crimes
• Corrections costs in CA: $12 billion in 1997; $49 billion in 2007
• Inmates in CA state prisons: 24,569 in 1980; 167,791 in 2009
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Hamilton is a Calif. journalist who collaborated with Kamala Harris on Smart on Crime and Meg Whitman on The Power of Many.

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