Good Governance Paper No. 19: The Criminal Legal System — Toward a Paradigm Shift

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

 

America’s history of racial injustice, the shadow cast by that history over the criminal system, and the Trump administration’s activities have created plenty of work to do at the intersection of good government, race, and the criminal legal system. The next administration would do well to reverse nearly all Trump era criminal justice policies. Beyond that, the United States must commit to a normative and ideological path informed by racial justice, put people in positions of authority who are aligned with that vision, and enact policies to dismantle the carceral state and reduce its role in American life. What follows are a handful of reforms that the next administration can adopt to put the country on that path.

Values Matter

Ideology and worldview matters. Trump has decried uprisings against police violence and racial injustice, compared lawful protestors to hate groups, encouraged police brutality, stoked fear and anger, and denied systemic racism exists. He has repeatedly invoked the same racialized, law and order and tough on crime rhetoric that helped make America the world’s leader in incarceration. Ending that rhetoric is essential. But what should then replace it?

In its place, the next administration must embrace a robust and unwavering commitment to racial justice. Government officials and policymakers must first acknowledge the criminal system’s role as the handmaiden to the regime of racial caste that has shaped our country. Its evolution and precipitous growth, driven by Democrats and Republicans alike, has produced an institution that perpetuates racial and social control through mass incarceration and criminalization. While the system purports to provide safety and accountability, the evidence of its massive failings—made manifest by inequality and injustice—is readily apparent. At every stage, from policing and prosecution to conviction, sentencing, and reintegration, the criminal legal system treats Black people and other people of color far worse than their white counterparts. The summer of 2020 laid bare these concerns and much more, as what may have been the largest social movement in American history exploded in the wake of the death of George Floyd, a Black man, at the hands of Derrick Chauvin, a white police officer, in Minneapolis, Minnesota.

As long as the criminal system is viewed as the solution to our social ills, America is doomed to remain the world’s leader in incarceration and mired in our history of racism. Adopting a racial justice lens means working to reduce America’s reliance on the criminal legal system and the carceral state, and instead making investments in individuals and communities to address the deep-seated social and economic inequities that drive people into the system in the first place. Vice President Joe Biden has given voice to such normative shifts. They are a necessary predicate to substantive progress and good government reforms.

Personnel Matters

Federal judges and Justice Department officials play an outsized role in the administration of criminal law. The federal bench is overwhelmingly white, male, and replete with former prosecutors. All but four of the 84 people who have served as attorney general were non-Hispanic white men. More than half came to the role with prior prosecutorial experience. And white men lead 79 of the 93 U.S. attorney’s offices in the country. Good government practices dictate filling these roles—through presidential appointment and Senate confirmation—with dramatically more people of color, women, and people who have spent the balance of their careers advocating for racial justice, advancing civil rights, and working on behalf of the accused and the condemned. Such people bring a perspective informed by the challenges that the intersection of race and the criminal legal system present and a broad-based outlook on how to meet those challenges.

People with lived experience in the criminal legal system must also have a significant voice and role in the next administration’s approach to policy. Those who have been on the receiving end of the injustice often meted out by the system have unique insights to offer that can help the nation to close the yawning gap between its ideals and the harsh realities of current policy and practice.

Policy Matters

The regressive actions of the Trump administration—matching his rhetoric—did much to upend bipartisan efforts to address criminal injustice. He and his DOJ have abandoned investigations into police misconduct and oversight of local departments, encouraged the use of the death penalty for drug offenses, ended a 17 year moratorium on federal executions in the midst of a global pandemic, reinstated contracts with private prisons, closed halfway houses that assist with the reentry of the formerly incarcerated, weaponized federal prosecutions against protestors, and condemned state and local prosecutors who pursue criminal legal system reforms. At the same time, they have turned back the clock on a host of Obama-era policies that extended leniency in charging and sentencing practices.  The Trump DOJ reversed guidance to federal prosecutors to bring lesser charges against some accused of drug offense that would trigger harsh mandatory minimums, and instead ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.” It likewise rescinded policies that fostered a hands-off approach to prosecution in states that decriminalized or legalized marijuana use. And these are just a few of the actions this administration has taken.

Given that context, there are a host of nonpartisan policy prescriptions that would imbue each stage of the criminal legal system with some important measure of fairness and equity.

  • Reduce the Footprint of Law Enforcement, Open Avenues for Police Accountability, and Regulate New Criminal System Technologies

Armed police officers, licensed to arrest and use lethal force, are far too often the first responders to all manner of non-emergency, non-violent calls for service. That fact has fatal consequences for communities of color, where every interaction with law enforcement is freighted with a legacy of racial inequality in policing. The federal government can incentivize alternatives to police to patrol traffic, respond to minor interpersonal disputes, and attend to people who are navigating mental distress, combatting substance use challenges, or grappling with homelessness.

When police engage in misconduct, they should be held to account. The judicially created doctrine of qualified immunity shields law enforcement from personal liability and money damages for constitutional violations such as excessive use of force, as long as the official did not violate clearly established law. Legislation has been proposed to abolish the doctrine. A good government approach requires passing it into law.

Returning to the Obama-era use of consent decrees and other accountability measures under the purview of the DOJ would also be wise. While such efforts are by no means perfect, they open up possibilities for institutional and structural change that disappeared with the Trump administration.

Finally, algorithmic tools, predictive and surveillance technologies, and automated decision systems play an increasingly sizeable role in the criminal legal system. Given the risk that these tools will reproduce and exacerbate racial inequality, legislation has been proposed to address algorithmic bias and fairness. The next administration should encourage its enactment. It should also impose a moratorium on facial recognition tools, assessed as racially biased by independent researchers and the government.

  • Reign in Prosecution and Support Indigent Defense

Ending the Trump DOJ prosecutorial charging policy in favor of one that requires federal prosecutors to engage in an individualized assessment of the facts and circumstances of a case, attend to unwarranted disparities in treatment, consider the interests of justice, weigh the impact of potential punishment on the accused and the community, and deprioritize incarceration would recast the imbalance fostered by current practice.

On the other side of the courtroom, since the Supreme Court mandated the provision of counsel to the indigent more than 50 years ago, those services have been severely underfunded at the state and federal level. Given the intersection of race and economic disadvantage, those who cannot afford counsel are often Black or Latinx. When he was in office, Attorney General Eric Holder acknowledged the crisis of indigent defense. Policymakers could remedy this funding deficit by channeling federal dollars to states to fully fund indigent defense efforts, a practice undertaken during the Obama administration.

  • Focus on Decarceration and End Overly Punitive Practices

While the United States leads the world in incarceration, the federal prison population is a relatively small share of the total number of people locked up in this country. But that does not mean federal policymakers are without recourse. A menu of reforms includes:

  • Eliminating Mandatory Minimums: Mandatory minimum sentences at the state and federal level are key drivers of mass incarceration. They impose a one-size-fits-all punishment and embolden prosecutors to use harsh sentences as leverage to induce guilty pleas. At the federal level, they fall hardest on Black and Latinx people. Biden has already committed to ending them. Doing so through legislative action, DOJ charging policy, or by refusing to sign into law new legislation that includes such sentences would go a long way toward reducing the federal prison population and entrenching these reforms.

  • Declaring an End to the War on Drugs: America’s War on Drugs is one factor among many that have fostered mass incarceration. At the federal level, nearly half of people in prison are locked up because of a drug offense. Although the share of people in state prison for drug offenses is much smaller, the drug war has been waged almost exclusively in Black and Latinx communities. Deprioritizing drug prosecutions, decriminalizing cannabis, providing for expungements, and reinvesting in communities harmed by the drug war are examples of what an end to these practices could involve.

  • Ending the Federal Death Penalty and Excessive Sentences: Capital punishment has been widely criticized as infected by racial bias, ineffective as a deterrent, and imposing deep financial and moral costs. Policymakers should simply end it. At the same time, the next administration should encourage the passage of second look legislation which allows people in prison to apply for resentencing after serving a period of incarceration.

  • Reverse Engineering the Violent Crime Control and Law Enforcement Act of 1994: Popularly known as the 1994 Crime Bill, this piece of legislation played to the worst impulses of the tough on crime era. It authorized $12.5 billion to subsidize the construction of state prisons; prioritized funding for states that passed “truth-in-sentencing” laws that required individuals to serve at least 85 percent of their sentence behind bars; eliminated Pell grant eligibility for people in prison; authorized the death penalty for 60 new federal offenses; imposed mandatory life sentences for people with three or more convictions for certain felony offenses; authorized prosecutions of children as young as 13 years of age; and increased funding for policing in schools.

The next administration should use the same philosophy of cash grants to states to incentivize decarceration by releasing people from state prisons, providing them with the support they need to successfully reintegrate into society, encouraging the use of restorative justice practices, improving pretrial justice, and upending the harms of a juvenile system that tracks young people into adult prisons to do adult time. These are just a handful of ways the administration can begin to unwind the damage done by this profoundly flawed legislation.

Building on the law by fully funding its implementation, removing barriers to reentry by enacting a federal expungement statute to clear criminal records of federal convictions, and extending its reach to release more people from prison would be a natural set of next steps going forward.

  • Confront Racial Injustice

In the 1987 decision McCleskey v. Kemp, the United States Supreme Court made it nearly impossible to challenge racial inequality in the criminal legal system absent proof of racial animus by an identifiable actor in the criminal system. In doing so, the Court rejected statistical evidence as proof of racial discrimination. Legislation can plug the hole left by McCleskey, allowing for the use of statistical evidence to prove racial discrimination through disparate impact. The new Congress and next administration can also encourage robust data collection at the state and federal level to track the emergence of racial disparities in the criminal system. Doing so can spur further reforms to address racial inequality where it resides.

Congress and the administration should also encourage the use of racial impact statements, tools that allow lawmakers to evaluate the racial disparities that proposed legislation would yield if adopted. Legislation at the federal level already must be analyzed for fiscal impact by the Congressional Budget Office; providing concrete data on the impact of criminal system legislation through a racial justice lens would further the goals of challenging racial inequality in the criminal system. As a Senator, Biden sponsored legislation that would have surfaced unwarranted racial disparities in the criminal system, providing a way forward on this reform.

The next administration and the new Congress have plenty of work to do to advance racial justice in the criminal legal system. And that work must ultimately be matched with significant investments in health, education, employment, and communities to eliminate the challenges that drive people into the criminal legal system in the first place. But by repairing the damage done by the Trump administration, adopting an entirely new orientation that breaks entirely from the past, and taking bold, creative action to reduce the footprint of the criminal system, the potential for equity, fairness, and good government practices is boundless.

  

About the Author(s)

Vincent M. Southerland

Executive Director, Center on Race, Inequality, and the Law at New York University School of Law. Follow him on Twitter @vmsoutherland.