In the wake of protests over the murders of George Floyd, Breonna Tayor, Ahmaud Arbery and others, together with the lens the COVID-19 pandemic has focused on incarceration, we stand at the threshold of comprehensive and long overdue reforms in our criminal justice system. New York state has three new leaders who stand at the forefront of driving this reform: Manhattan District Attorney Alvin Bragg, Mayor Eric Adams, and Gov. Kathy Hochul. Yet the differences and tensions between the plans proposed by these elected officials illustrate the foundational problem that plagues our nation’s criminal justice and the challenges that any and every reform effort faces. The problem inherent in our criminal justice system can be summed up in four words: We don’t have one.
The consequences over the past half-century have been a human and economic tragedy and an indelible stain on our national principles, values and integrity.
Through the 1970s, the annual incarcerated population in the U.S. never rose above 305,000 and reflected the demographics of the country. Yet since then, so-called law and order reforms have created mass incarceration on an unprecedented scale. The U.S., which has less than 5% of the world’s population, now houses 20% of all the people incarcerated, with more than 2 million a year in American carceral facilities. More than 600,000 people are also released from jails and prisons each year, with a recidivism rate around 75%. The unemployment rate among the formerly incarcerated wavers between 27% to 50%; and 50% of people released from prison just in New York state experience homelessness during their first year back. An estimated 20 million Americans have a felony record, and another 70 million have some criminal record – more people than have a college degree. Together with hundreds of parole violations in each state, this record creates institutional and cultural barriers to employment, housing and building credit. Black and brown people from low-income communities are disproportionately impacted; for example, nearly 1 in 3 Black men are arrested by the time they’re 23.
Clearly, criminal justice is failing all of us. Scores of politicians are now proposing solutions. In New York City, Bragg was elected on a “progressive” platform promising, among other things, to further reforms in bail and pretrial detention, to stop trying minors as adults and to create a new regimen for police accountability. Adams has walked back his endorsement on all these issues, and in an attempt to ensure “public safety” amid a recent crime wave, is revisiting more direct and proactive policies like the formerly discredited stop and frisk. Hochul seems to waver somewhere in between, and as a relative newcomer to justice reform has yet to articulate a comprehensive plan.
A much wider spectrum of perceptions and approaches to criminal justice are evident across the country, with most reforms compartmentalized on specific issues, the most notable: policing, bail, sentencing, more humane incarceration facilities, less draconian probation and parole violations, hiring incentives for formerly incarcerated people, or voting rights for people in prison or convicted of a felony. At the same time, other leaders and advocates are doubling down on traditional law and order measures and restrictions, and some elected officials, like Adams, straddle this spectrum and seem more reactive than strategic.
As is evident from this sampling – and from listening to perspectives on criminal justice from legislators, law enforcement, district attorneys, judges, department of corrections personnel, and advocates of all stripes – the U.S. lacks any clear consensus on the purpose and mission of criminal justice, as well as a clear definition of what we mean by “public safety.” (For example, ask George Zimmerman and Trayvon Martin’s mother Sybrina Fulton how they view public safety, and you’ll likely get two very different visions).
Every society creates ways to hold people who transgress laws accountable. However, that accountability needs to flow both ways. That system, and the actors within it, need also be held accountable to the principles of justice a given society dictates.
Yet the absence of a clear mission for an American justice system means that every agency, department and individual within that so-called system can create their own narrative for their role and responsibilities, and are ultimately only accountable to that self-made narrative. So, for example, a correction officer can believe their job is to help make jails and prisons safe for people incarcerated, and to help make their time there have value. Meanwhile, another officer can assert it’s their responsibility to inflict deprivation, humiliation and pain on those incarcerated as punishment for their crime and a deterrent to reoffending. Both officers can get good reviews and be promoted.
This kind of schizophrenic application is rampant at every level of America’s approach to justice. Unlike countries like Germany and Norway, we lack anything that resembles a unified theory of justice – clear purpose and set of universally accepted principles that inform, define and evaluate everyone charged with ensuring public safety and carrying out justice. We lack anything that can be credibly deemed a justice “system.”
And that is precisely what we need: Leadership at all levels – including district attorneys, mayors and governors – who can work together to articulate a singular purpose and mission for a criminal justice system, and who build consensus and common standards under their jurisdiction. Only then can we have a system of justice that can coordinate our individual and collective efforts toward attaining that higher purpose: An authentic system of justice that demands equal accountability and that preserves safety, human dignity and social purpose for us all.
Until we can do that, public safety will remain elusive, reforms will be Band-Aid measures at best, and the disgraceful waste of human and economic capital will endure.
Tommy Safian is the founder and managing director at Opportunity Justice.