After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration.
Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions—big and small, conservative and liberal—committed to using data to reduce incarceration.
The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.
Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts. Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year—and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.
But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too.
“Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation.
Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability—including incarceration—for offenders, particularly in cases involving domestic violence.
Is it possible for victim advocates and jail reduction advocates to find common cause? To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials.
The roundtable highlighted a number of tensions.
One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services—for domestic violence defendants who are out in the community pending trial.
This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted—of criminal behavior.
As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.
Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending. But victim advocates are asking some hard questions about these tools: How accurate are they?
What can a statistical analysis tell us about what any individual defendant might do? And how well do risk tools take into account potential lethality?
“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable.
Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk—and severity—of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not.
In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups.
This will be difficult, but not impossible. After all, many victim organizations realize that the line between victim and defendant can be exceedingly blurry. This is particularly true when it comes to gun violence: Many shooters know first-hand what it feels like to be shot or to lose a loved one to violence.
Indeed, many victims and defendants share a common history: Trauma.
Child abuse, sexual abuse, family dysfunction, and community violence are facts of life for all too many individuals in the justice system. These experiences can be profoundly shaping, not just emotionally but physically as well. Childhood exposure to violence can negatively influence individuals’ behavior for the rest of their lives.
A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not.
“It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation. “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”
Victim advocates and jail reduction proponents may not be able to agree on every issue.
But in those areas where they have shared goals—improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care—they can serve as a powerful voice for change within our justice system.
Greg Berman and Julian Adler are, respectively, the center director and director of research-practice strategies at the Center for Court Innovation. They welcome readers’ comments.