Missing Pieces of the Criminal Justice Reform Conversation

By Bob Gangi, Gotham Gazette

Many justice reformers welcome increased political support for constructive systemic changes. New York state government, for example, recently enacted reforms aimed at restricting the use of cash bail and reducing misdemeanor arrests. Many Democratic presidential candidates pointedly decry mass incarceration and our "broken" criminal justice system.

photo: Spencer T Tucker/City Council

photo: Spencer T Tucker/City Council

The most positive feature of this shifting landscape is the moral concern that it reflects, the relatively new recognition among pundits, politicians, and broader public that our criminal justice system is marked by a stark racial bias and that it undeniably violates our nation's core principle of, as Thomas Jefferson put it, providing "equal and exact justice" for all people.

What's missing, though, is certainty that all the attention will lead to meaningful changes in on-the-ground practices.

For instance, New York’s bail law includes significant exceptions regarding who can benefit from its provisions: judges can still set cash bail for New Yorkers with open warrants and with failures to appear in their histories. That’s many thousands of people.

Plus, and this point applies to all the reforms enacted, the agencies mainly responsible for the system’s current abuses, district attorneys and police, are still in power. They are in charge of implementing the changes and have ways at their disposal, overcharging being the most handy, to undermine them if they so choose.

Also, none of the Democratic presidential candidates who engage in indignant rhetoric on the issue have presented the kind of specific steps needed to reverse mass incarceration and to end systemic racism. We know from research and experience that the typical proposals that they and other mainstream politicians offer — body cameras, community policing, increased diversity, even marijuana legalization — will not make meaningful differences in current toxic practices. Jurisdictions that have enacted these changes still lock up far too many Americans, a disproportionate number of whom are Americans of color.

What's missing are policy reforms, proposed or enacted, that lead to institutional changes that are fundamental -- could say radical, in the sense that they address the "root" of the problem -- and significantly cut into the currently unchecked power of police and prosecutors.

One such step would involve repealing mandatory sentencing laws. It was the notorious Rockefeller Drug Laws -- enacted in New York in 1973, requiring a minimum prison term of 15 years (up to life) for the sale of 1 ounce or possession of 2 ounces of a hard drug -- that jump started the extraordinary expansion in imprisonment in the United States that we dub the "mass incarceration" movement. Eventually every state in the country and the federal government passed mandatory sentencing statutes, and the number of incarcerated Americans went from about 300,000 in the early 1970s to about 2.4 million today.

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