Eye on the Courts: Fixing Our Criminal Justice System

Last week, we reported on research from University of Michigan economics professor Michael Mueller-Smith who, upon examining court records from Harris County, Texas, from 1980 to 2009 found that each year in prison reduces the odds of post-release employment by 24 percent and increases the odds of living on public assistance.

In tracking what happened to prisoners in Harris County upon release, he created a measure that estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6 percent a quarter. Even among people who were incarcerated for lesser crimes, they would commit more serious offenses, upon release, the more time that they spent in prison.

This past week the American Bar Association held their annual meeting with a discussion: “Mass Incarceration: A Nation Behind Bars.”

Among the panelists, as reported in the ABA Journal, was Marc Mauer, executive director of the Sentencing Project.

He told the audience, “Suppose that in 1972, in response to a rising crime rate, then-President Richard Nixon announced plans to build 1 million new prison cells, reserve 60 percent of them for blacks and Latinos and put 3,000 people on death row… Such an announcement, which never happened, would have provoked widespread outrage… But the nation’s criminal justice policies over the past 40-some years have had that very effect.”

Mr. Mauer argued,  “The explosion in the prison population has come about primarily through changes in policy, not crime rates. Sentencing policies adopted in the 1980s and ’90s were designed to send more people to prison and to keep them incarcerated for longer periods of time.”

However, as he noted, we are finally seeing the shift away from such harsh sentencing policy.

“Many of us are more optimistic about the prospects for reform now than we’ve been in a long time,” he said.

Martin O’Malley is running for president. A former Governor of Maryland, he was Mayor of Baltimore from 1999 to 2007. He had instituted a tough-on-crime approach that was for a long time deemed highly successful but now has recently, in the wake of the Baltimore riots and the death Freddie Gray, been blamed for creating tension in lower-income neighborhoods.

He has now laid out a plan to reform the criminal justice system.

“For too long our justice system has reinforced our country’s cruel history of racism and economic inequality—remaining disconnected from our founding ideals of life, liberty, and equal treatment under the law,” he said in the prelude to his plan.

‘Our country needs new leadership that will honestly assess our broken criminal justice system and put forward solutions that will:

• Ensure that justice is delivered for all Americans—regardless of race, class, or place.
• Build trust between law enforcement and the communities they serve.
• Ensure fairness and equal treatment for all people at every step within our justice system.

In an interview with Ebony, Mr. O’Malley told the magazine that he thought the nation was ready for this type of criminal justice reform. He said, “I absolutely do and one of the very important things that we can establish right off the bat is to require data to be recorded that measures police-involved shootings, custodial death [and] excessive use of force… we should require every department to monitor as courtesy excessive force complaints because the things that get measured are the things that get management attention and in the past we haven’t had that standard recording in our country.”

In terms of making racism an important part of his campaign, he said, “I think Dr. King summed it up when he said that one day, this generation of Americans will be called [to respond] not only for the evil acts of bad people, but for the appalling silence of the good.”

However, he largely dodged the question about taking back some of the policies he implemented in Baltimore, stating, “I wish that we had been leaders in the newer technology, both in our state and as mayor, [such as] the body cameras and the cameras [in] police cruisers. We were early implementers of putting up public safety cameras to keep public spaces safe. I wish we had been just as early and proactive in the body cameras and cameras in cruisers…I also wish that I had done a better job of institutionalizing some of the practices in terms of policing the police that were implemented during my time, that I wasn’t able to institutionalize to carry on after my time as much as I would have liked.”

His plan (which you can read here in full) calls for building trust, transparency and accountability in law enforcement.

“The causes of crime are complicated. But our fundamental values and principles as Americans are simple: that all people are created equal, and should be protected equally under the law,” he states in his plan. “Public officials especially, including police officers, must treat all communities fairly and earn their trust. The next president should work closely with law enforcement agencies to implement best practices in policing, and build cultures of transparency, accountability, and respect.”

“As President Obama’s Task Force on 21st Century Policing observed, law enforcement is at its best when officers work together with neighborhood residents to ensure public safety and promote the dignity of all people. This ‘guardian’ ethic better protects citizens and law enforcement alike. Moreover, people have the greatest trust in law enforcement when officers’ strategies and policies reflect their own values and input, and when policing data and practices are transparent and accessible to the public,” the plan continued.

Among other things, he calls for mandated and expanded data reporting, establishing a national use of force standard, expanding community collaboration and civilian review of police departments, using technology to advance transparency, and improving access to justice within the criminal justice system.

One of the critical points he makes in his plan is, “State laws governing when police officers can use excessive force vary greatly. In order to protect citizen and officer safety, O’Malley will put forward national guidelines on the use of force, linked to the expanded mandatory reporting detailed above. He will support legislation to require states to review and amend their own use of force laws to comply with federal guidelines.”

Another line of thinking is increasing fairness in sentencing. He pledges to eliminate the sentencing disparity between crack and power cocaine: “This sentencing disparity has resulted in vast racial disparities within the justice system. Before Congress lowered the sentencing ratio in 2010 from 100:1 to 18:1, unjustifiably higher penalties for crack offenses led to African Americans serving roughly as much time for non-violent offenses as whites for violent offenses. O’Malley has called for and will continue to support legislation to completely eliminate this sentencing disparity.”

He would declassify marijuana as a Schedule I Drug, supporting “bipartisan congressional efforts to legislatively reclassify marijuana as a Schedule II drug.”

Martin O’Malley supports reforming mandatory sentencing: “Over the past 30 years, mandatory minimum sentences have led to punishments that often do not fit the crime. Unnecessarily harsh sentences for non-violent offenses have not deterred crime, and have disproportionately impacted communities of color. O’Malley will support legislation that eliminates mandatory minimums for low-level drug offenses, while giving judges more flexibility to tailor sentences based on the facts of each case. He will also continue the Department of Justice’s successful Smart on Crime initiative, directing U.S. Attorneys to exercise greater discretion in their charging decisions.”

He will seek to forge consensus for ending the death penalty. “The death penalty is a racially biased and ineffective deterrent, and the appeals process is expensive and cruel to surviving family members. O’Malley has long opposed the death penalty as a matter of principle and as a matter of policy. As president, he will continue to oppose capital punishment and work to abolish death sentences under federal laws.”

Martin O’Malley appears unlikely to advance far in the presidential race. In the Democratic Party, Hillary Clinton is the clear front runner while Bernie Sanders has captured the activist wing. Mr. O’Malley cites his experience, “I believe I have a unique perspective to offer on this that’s very different from theirs. It comes from 23 years of service. It comes from being both a prosecutor and a defensive attorney. “

However, the question will be, going forward, how much of his criminal justice reform program will be taken up by others in his party.

—David M. Greenwald reporting

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