Justice in Waiting

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When it comes to justice reform, you don’t always need new legislation.

Here’s a case in point: South Carolina State Sen. Gerald Malloy recently proposed a bill that would raise the age of criminal responsibility in his state to 18—a measure already adopted in a majority of states.

The bill is not yet law in South Carolina’s Republican-dominated legislature; and may never be.

But Malloy, a Democrat who chairs South Carolina’s Criminal Justice Task Force, had a quiet conversation with the director of the state’s Department of Corrections, who agreed that housing youths with older offenders was counter-productive.

So the corrections chief issued a guideline requiring young offenders aged 17 or less to be separated from other inmates.

It wasn’t perfect—but it was a start.

“We just have to keep changing minds,” said Malloy, who recounted the story at a panel yesterday at John Jay College of Criminal Justice in New York.

The panel, part of the 11th annual John Jay/Harry Frank Guggenheim Symposium on Crime in America, offered plenty of similar examples of how authorities are quietly changing procedures and approaches, even as larger debates about how far to take justice reform continue to face political headwinds.

In Newark NJ, for instance, where local police have had a tense relationship with inner-city communities even as they demanded staffing increases, Mayor Ras J. Baraka instituted a rule mandating that one social worker be hired for every 25 new officers.

“When people believe that police officers are there as an appendage of the community and not there to occupy the community, then I think it will change a lot of the trajectory of the ways things are going in these neighborhoods,” Baraka told an earlier panel yesterday.

Baraka, who started Newark’s first ever Civilian Complaint Review Board after his election in 2014, said changing the image of police as an occupying force in poor, minority communities  required showing that police departments were committed to the wellbeing and safety of those whom they were sworn to protect.

Tough-on-Crime Mindset

More than anything, the most significant prospect for changing the tough-on-crime mindset that has been a feature of justice system policies for decades lies in Malloy’s phrase: “changing minds.”

This idea that changing perceptions, and dispelling long-held myths, will lead to a more just — and more cost-effective — criminal justice system was an underlying theme of yesterday’s symposium.

Editor’s Note: U.S. Southern District Court Judge Jed Rakoff  is the keynote speaker at today’s conference sessions, which include  an assessment of the impact so far of last year’s Task Force on 21st Century Policing,  and an examination of how prosecutors’ use of plea bargaining can land innocent individuals behind bars. Check back with TCR today for reports from the conference.

There may be no better example of how changes in attitude can lead to dramatic policy revisions than the current debate on sentencing reform.  At a panel exploring state and federal efforts to use reductions in sentencing provisions as one of the tools for reducing prison populations, Molloy was one of several speakers examining recent developments at the federal and state levels.

Sentencing reform is no longer an issue only “bleeding heart liberals” care about, said Anya McMurray, Deputy General Counsel to Sen. Patrick Leahy (D-Vt.), ranking member of the Senate Judiciary Committee, where a proposed overhaul of federal sentencing guidelines—the Sentencing Reform and Corrections Act—is currently being debated.

A similar measure is up for debate in the House.

McMurray concedes the proposed legislation will probably not dramatically impact the bursting federal prison population, but would nevertheless “be historic.”

Fear, she says, is a significant hurdle. But good data can beat anecdotal evidence.

“We are just getting people to realize that sending people to prison for a long time does not impact public safety,” she said, adding that the fact Congress is even talking about retroactive “re-sentencing” on some offenses if the bill were to pass is “a sea change.”

But states have already gone a great deal further in accepting that locking more and more people up for longer and longer sentences is not making the public safer, said Adam Gelb, Director of The Pew Charitable Trusts’ Public Safety Performance Project.

That partly results from a change in public perception.

Public Opinion Shifts

Gelb cited a study by Pew Trusts where a majority of those polled —from across the political spectrum — think federal prisons lock up too many people for drug crimes and that mandatory minimums should be eliminated.

States are already making progress. Thirty-one state legislatures have enacted criminal justice reform bills in the last decade, and representatives from three of those states, Utah, South Carolina and Mississippi talked at the panel about how they were able to make change in their “red” states.

“We’ve seen a lock-em-up society and it hasn’t worked,” said Malloy.

One of the keys to the attitude change is the support from powerful advocates on the right, such as the Charles Koch Institute.

“We’re all talking about these things,” said Vikrent Reddy, Senior Research Fellow at the Institute, and one of the architects of the Right-on-Crime initiative which has put together a striking coalition of leading conservatives to support measures that once seemed exclusively to be favorites of liberals—such as closing down prisons and developing punishment alternatives.

“It’s really, really exciting because we didn’t talk about them for 20 years,”

Ron Gordon, Executive Director of the Utah Commission on Criminal and Juvenile Justice, said his state was among the nation’s most conservative. But it recently instituted some of the country’s most dramatic changes in sentencing guidelines.

A recent tragic incident, the killing of a police officer by a parolee, put the entire exercise at risk.

Gordon reported getting media calls almost immediately asking whether the sentencing reforms were responsible for the officer’s death.

Overall, the reforms have not endangered public safety—“the data shows that crime is not going up,” said Gordon—but he added, “these anecdotes (make it) very, very difficult(to convince skeptics).”.

Still, noted McMurray, states may have an easier path to sentencing reform compared to the feds because state prison populations are directly tied to budgets, and legislators can feel the immediate impact of making changes that would reduce incarceration populations, such as the closure of prisons.

At the federal level, that’s a harder sell.

Victims’ groups and law enforcement associations have lobbied members of Congress against weakening current sentencing rules—in some cases warning that it will send “dangerous criminals” back to the streets.

“There is enough energy in Washington to get (the sentencing bill passed),” insisted McMurray. “I’m hopeful we can do it this year; I think we can.”

Which depends of course, on how fast, minds can change.

Adam Wisnieski is a contributing editor of The Crime Report. He welcomes comments from readers.

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