Justice Springs Eternal

http://www.nytimes.com/2017/03/25/opinion/sunday/justice-springs-eternal.html

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THIS wasn’t how the story was supposed to end. After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.

In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978. By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001. Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.

And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)

Such dangerous, ill-informed pronouncements naturally induce weariness and dread. Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever.

The same election that produced Mr. Trump and Mr. Sessions also saw widespread criminal justice reform victories at the state level through ballot initiatives. New Mexico prohibited judges from keeping people in jail simply because they can’t afford to post bail. Oklahoma reclassified various drug- and theft-related felonies as misdemeanors. California made more prisoners convicted of nonviolent crimes eligible for parole and gave judges, not prosecutors, the power to determine when juveniles can be tried as adults.

The most unexpected victories came in local races for prosecutor. For decades, district attorney candidates competed to prove they were tougher on crime than their opponents. That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla. Most, but not all, of these candidates were Democrats, and many of them won, including a former defense lawyer in Corpus Christi, Tex., who has the words “Not Guilty” tattooed on his chest.

These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates. While mass incarceration is a national crisis, it was built locally. Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.

Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill). But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards. During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.

Now, the reverse could also prove to be true. If multiple individuals across multiple systems were to become less punitive, the prison population would fall. This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.

The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level?

The answer lies with a new breed of activism that has emerged in response to mass incarceration. Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not.

For example, the “decarceration” movement is gaining strength from the leadership and participation of formerly incarcerated people and their families. Glenn Martin, who served six years in a New York state prison for armed robbery and is the founder of the group JustLeadershipUSA, has asserted that “those closest to the problem are closest to the solution.” Yet until very recently, formerly incarcerated people and their families were rarely heard from in criminal justice debates.

Their silence was understandable. Most people who have been in prison prefer to focus on the future, not the past, and speaking up requires them to publicize a personal history that many have kept hidden. They also must reckon with the stigma society heaps on those with criminal convictions. The restrictions vary from place to place, but in many cities and states, formerly incarcerated people cannot obtain public housing or food stamps, apply for a student loan, vote or serve on a jury. They face discrimination when trying to rent an apartment or find a job, and they are barred from some careers entirely. It would border on delusional for them to think they would be welcome to testify before a City Council.

Even putative allies share some of the blame. For most of the mass incarceration era, few reform groups actively recruited people with criminal convictions as participants, let alone as leaders. As David Singleton, a former public defender and the executive director of the Ohio Justice and Policy Center in Cincinnati, told me: “Some advocates have been arrogant in thinking that we know better how to speak for people who have been affected by the policies we want to change. We perhaps unconsciously dismiss those we try to serve as less than capable.”

This is slowly changing. Mr. Singleton says that some of his center’s most effective spokesmen were once incarcerated. “They are the true experts about our criminal justice system,” he says. “And even more than that, there is no substitute for people in positions of power getting to know and see the humanity of folks who are behind bars or have returned home.”

Reform groups around the country understand this. In addition to JustLeadershipUSA, VOTE (New Orleans), A New Way of Life (Los Angeles), Legal Services for Prisoners with Children (San Francisco) and dozens of other groups are all led by incarcerated or formerly incarcerated people or their family members. And the public role of these activists may have a ripple effect. Each time a formerly incarcerated person appears before a legislature, speaks at a news conference or writes about life in prison, walls of shame and stigma begin to totter, and others find it easier to speak up. In a nation in which nearly a third of people have been arrested by age 23, these voices could have a profound collective impact.

The criminal justice reform movement has also begun to embrace victims and survivors of crime. Pro-prison activists have long asserted “victims’ rights” on the assumption that if the criminal justice system took victims’ experiences and opinions into account, it would treat offenders more harshly. But today, advocates of criminal justice reform like Lenore Anderson of the Alliance for Safety and Justice in Oakland, Calif., are challenging the assumption that crime victims necessarily want punitive outcomes.

Ms. Anderson, who helped persuade California voters to pass progressive ballot measures in 2014 and 2016, told me: “If you ask crime victims to choose between prison and nothing, they choose prison. But people really want more choices. If you ask victims whether they want prison or alternatives like mental health treatment, drug programs and education, they overwhelmingly choose the latter.”

I saw the truth of Ms. Anderson’s words in my own practice as a public defender in Washington in the 1990s. One of my teenage clients robbed a man at a bus stop while armed with a knife. The evidence against my client was overwhelming, and with the prosecutor asking for a long sentence in a juvenile prison, my only hope was a long shot: to go talk to the man he robbed.

I went to his house and asked for a few minutes of his time. I told him about my client’s history of parental neglect and explained that a neighborhood crew had put him up to the robbery. I showed him the apology that the teenager had written at the bottom of his signed confession to the police. Finally, I told him that I had found a job training and counseling program that would accept my client. Sending him there, I said, would better protect society in the long run, and offer him more hope than locking him up in juvenile prison. As I left, I asked if he would consider supporting our proposal.

A few weeks later, the victim arrived in court. He told an annoyed prosecutor and a surprised judge that he had given the matter a lot of thought, had prayed about my suggestion and had decided to endorse the proposal for my client to enter the program. The judge agreed, and my client got the second chance that most of us would want for our child. The last time I saw him, years after his case was over, he was a grown man working in construction and raising a son of his own.

Of course, not everybody is this forgiving. But there are more victims like the one my client robbed than we may realize, and encouraging them to make their views known to policy makers will be crucial to the success of the reform movement.

My visit to the victim conveys a second lesson as well. Recently, when I told this story to a group of public defenders and other lawyers, one came up to me afterward shaking her head. She explained that she was responsible for more than 200 pretrial cases at one time. “You had more time to talk to the victim than I normally have to talk to my own client,” she said.

Indeed, no aspect of our criminal justice system is as overworked and underfunded as public defender services. Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense. Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.

President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”

But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda. We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win. And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.

This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors. I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.

I still believe this is true for most prosecutors’ offices. But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind. Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.

Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention. But their agenda faces a rising countermovement across the country. If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.