We live in an era in which the fundamental assumptions of our approach to crime and justice are being questioned. We are witnessing a reform movement that holds the potential for profound changes, and the rallying cries of this movement are sharp and critical.
It’s still too early to know where this movement will take us, but what is clear today is that the foundations of the last half-century of criminal justice policy are being called into question. The edifice called the criminal justice system is showing cracks.
Reform advocates are calling for an “end to the era of mass incarceration.” A national movement – using the hashtag “#cut50” – with a goal of reducing the prison population in half, has emerged amid calls for a long-overdue reckoning with the mistakes and abuses perpetrated in past eras of our history.
In the presidential campaign now underway, previous support for the 1994 Violent Crime Control and Law Enforcement Act is seen by many as an albatross for some candidates; and experience as a prosecutor, once thought a badge of honor, is often viewed as a sign of complicity in the ramp-up to mass incarceration.
A rich assortment of policy alternatives is now on the national agenda, with some of the boldest asking us to rethink assumptions that have guided policymakers for decades. The Square One Project at the Columbia (University) Justice Lab, for example, with which I am affiliated, is dedicated to the task of “reimagining justice.”
Working with colleagues across the country, we are asking what we call the Square One question: “How would we respond to crime if we did not rely so much on the traditional systems of law enforcement, adjudication and punishment?”
One target of these reform efforts is the long-standing practice of maintaining criminal history records. There is growing support among policymakers across the country for so-called “clean slate” measures, which would expunge or seal certain criminal records. In Pennsylvania and Utah, lawmakers have voted to automatically clear the criminal records of people convicted of some non-violent offenses who remain crime-free for certain periods of time.
Proposals to adopt “clean slate” reforms represent more than technical adjustments to a person’s criminal history. In a more fundamental level, these efforts represent a desire to counteract the damaging policies of the past. In this way, the “clean slate” movement is part of a larger effort by criminal justice reformers who are calling upon the country to engage in a process of “reckoning” with our past.
If, as some reformers argue, the nation cannot adopt more humane criminal justice policies without first coming to terms with our punitive, racist past, then how should we think about the role of those state agencies that maintain the records of that past? Which records, if any, should be expunged, and why? Should all history be erased and not even available for research purposes? Should this history be off limits for historians?
How should we balance the operational value of these records for investigative and crime-solving purposes against the calls for a “clean slate”?
Any argument to maintain these records faces another challenge. In the modern justice reform era—and more broadly in our public discourse on a variety of policy questions— we are witnessing a deep skepticism about the role of science, the objectivity of data, and the value of research. In some quarters, science and data are viewed as having supported damaging policies of the past and providing little guidance for the future.
Yet, viewed differently, these challenges might provide an opportunity to develop arguments to support the value of criminal history repositories. Can we leverage the momentum of the reform movement to elevate the importance of these records? Stated differently, is it possible to find common cause with those who are decrying the use of these records?
The answer may lie in the definition of an expansive research agenda suited to our times.
The Power of New Alliances
The first order of business is to develop a constituency for criminal history records that are complete and up to date. Here, it is easy to find common cause with the reformers who cite examples of individuals who are denied housing, jobs, or other benefits because their criminal history records are inaccurate or do not reflect final dispositions.
Two states—Florida and Connecticut—provide examples of how different approaches to data can drive policy changes. Legislatures in both states have supported initiatives designed to provide accurate and timely criminal justice data. Interestingly, these initiatives were backed by justice reform advocates.
A driving force in both initiatives is Measures for Justice (MFJ), an organization which aims to transform how we measure and understand local criminal justice systems in America by measuring every stage of the criminal justice process across the 3,000-plus counties in the U.S. [Full disclosure: Arnold Ventures is a funder of Measures for Justice.]
Florida’s initiatives represented a remarkable victory in the MFJ campaign to create criminal justice data systems across the country. The legislation required every county to collect and report the same robust set of data elements, including pretrial release decisions, along with data on indigence, ethnicity, and what type of offenders are being convicted for new offenses.
Second example: This year, the Connecticut legislature passed a law making it the first in the country to collect prosecutorial data, and hopes to use the data to study racial bias and increase prosecutor accountability and transparency. This legislation was proposed by the American Civil Liberties Union, another leader in the justice reform movement.
These two examples illustrate the emergence of a strong trend, backed by newspaper editorials, good government groups, and advocacy organizations such as ALEC, the national conservative group, which has crafted model legislation on uniform criminal data collection in an effort to use a constructive approach to data as an impetus to reform.
The reform agenda also demands accurate criminal history records, not just outcomes of court proceedings. Advocates justifiably decry the extensive use of those records in public and private employment decisions. Central to that critique is the assertion of a governmental obligation to ensure the accuracy, completeness and timeliness of those records.
Granted, the public discourse now extends far beyond those rather technical issues. But while legislatures are considering the expungement of criminal histories, they should also be demanding that these records be accurate. There is common ground between those fighting the age-old battle of adequate funding for criminal history repositories, and those fighting to limit the use of those records.
Looking beyond the need for complete criminal history repositories, are there other topics where criminal history records could support a research agenda on issues central to the reform era?
Here are my nominations for five big topics.
Documenting the Expansive Reach of the Justice System
The most profound reality of the past half-century has been the dramatic expansion of the justice system. Over the past few decades, our nation has more than quadrupled the rate of both incarceration and community supervision.
Since 1983, the rate of jail incarceration has gone up by 140 percent. Today, between 70 and 100 million Americans – one out of every three – have criminal records. Today, one out of five children has a parent who has been incarcerated. One out of every two Americans has an immediate family member who has been incarcerated.
These trends are quite well documented in the scholarly literature, but they are not well known at a state or local level. The agencies that serve as repositories of criminal history data and data on prisons and court are uniquely positioned to support this kind of research.
Imagine that the state agency responsible for criminal history records published a report each year documenting the rate of incarceration, the rate of supervision, the percent of children with an incarcerated parent and the percent of state residents who had a criminal conviction? This would support a much more robust discussion about ways to reduce the justice system’s reach in that state.
Documenting Concentrations of the Justice Footprint
The growth of the criminal justice system has not been uniformly distributed across all communities. In fact, the impact of the ramp-up in incarceration – both jails and prisons – as well as increased community supervision through probation and parole has been concentrated in a small number of neighborhoods, mostly communities of color.
Years ago, Eric Cadora documented the phenomenon of the “million-dollar block.” These are definable residential blocks where the taxpayers pay more than a million dollars a year to incarcerate the individuals who lived on that block prior to their incarceration.
If we want to develop a full understanding of the “era of punitive excess,” we should examine the geographic concentrations of the reach of the justice apparatus. Because criminal history records are typically created at an individual level, and the unit of analysis is an arrest and not a neighborhood, we do not think of these data as shedding light on the geographic concentrations of the justice system.
But using geo-coded data could transform these individual arrest records into a community-level understanding of the operations of the justice system over time.
Imagine that the state agency documented the geographic concentrations of the justice system, along with the costs of those agencies, to demonstrate that the burden of the system is borne by communities struggling with other forms of disadvantage. Perhaps this would occasion a discussion about other ways to invest those dollars in those communities.
Documenting Racial Disparities
The most pernicious dimension of our current reality of the overreach of the justice system is the impact of that system on communities of color. But simply answering the age-old question, “Are there racial disparities in the operations of the criminal justice system?” —though important— misses a larger point, namely that the aggregate impact of our criminal justice system has resulted in deep harm to communities of color and has undermined our nation’s pursuit of racial justice.
We can struggle mightily to reduce racial disparities in the operations of the justice system, but unless we examine the macro issue of the racial harms of the era of punitive excess we will miss the central reality of racial injustice.
The creative use of arrest records could document the concentration of enforcement activities in certain neighborhoods. Creative analyses of incarceration trends could document the impact of prison terms on the life course of men in communities of color.
Creative analyses of the reach of probation and parole agencies, and the ways that revocation policies have undermined community well-being, would shed light on the damaging impact of these practices. No other data resource holds as much potential to answer these questions as the criminal history repositories. Imagine that these state agencies assumed a responsibility to document the racial disparities of the operations of the justice system and create a scorecard to measure progress.
Redefining Success and Failure Beyond Recidivism
It is critical to move away from the use of recidivism as a measure of the success or failure of any program or any policy. Recidivism – whether defined as re-arrest, re-conviction or re-commitment to prison – is a poor measure of anything.
There are definitional problems: one failure is the same as multiple failures; one failure at the beginning of a three-year period is equated with a failure at the end; one failure for a serious crime is equated with a failure for a minor crime. But the larger problem with recidivism is that it does not measure success, nor does it measure anything known in the criminological literature to be associated with desistance.
Imagine, instead, that we had regular measures of employment, success in school, health outcomes, familial relationships or community participation? And imagine if we could link this data with administrative records on employment, health, housing, and social services. That would lead us to a broader view of the appropriate measures of success and failure for individuals involved in the justice system, and help reframe our definition of success for the justice-involved population.
Calculating Lives Lost to Incarceration
When we look back at the era of punitive excess, we should ask how we can create an accounting of our excessive use of punishment, particularly through long prison terms. This issue has special traction now, given the recent resurgence of interest in reparations for the damage done to African Americans through the centuries of enslavement, the American apartheid known as Jim Crow, the reign of terror through lynching and the appropriation of wealth through residential segregation.
If we think that the current era of punitive excess, with our over-reliance on punishment as a response to crime, has been powered in large measure by the same forces of racial animus, then we face a moment of reckoning not too different from the call for reparations.
The first challenge, in my view, is a simple calculation of the lives lost to incarceration. I proposed such a calculation in a recent lecture at New York Law School.
As our prisons increasingly resemble nursing homes, with geriatric wards and hospice centers, we must realize that our punitive impulses have come at a great cost. In the modern reform era we are beginning to hear calls for the retroactive application of sentencing reforms, recognizing that we have been too punitive.
Simple modeling exercises could help legislative committees, sentencing commissions, or advocacy groups understand the implications of significant reductions in prison populations, whether through parole reforms, second-look provisions, and retroactive applications of sentencing reforms such as seen in the federal system with the application of the new provisions for crack/powder.
These straight-forward calculations would help our country come to a deeper understanding of the price we have paid for the tough on crime policies that we adopted over the past half-century. They would also support the call for a reversal of those policies in the name of justice
Some might argue that such a research agenda extends beyond – in some cases, far beyond – the more traditional research agenda of organizations like SEARCH, a national organization of governor-appointees from each State and territory who are responsible for criminal justice information-sharing and management.
But today we have more academicians than ever before—and from a range of scientific disciplines—who are taking a professional interest in criminal justice reform.
The evidence they produce is critical to identifying underlying problems and creative reform-minded solutions. But if they don’t have access to high quality data, or if they have to go through a painstaking process of accessing (and inspecting, cleaning, and combining) data agency-by-agency, then we’re limiting our abilities to improve the lives of people touched by the system, as well as the lives of those whose safety is ensured, in part, by a fair and effective criminal justice enterprise.
I recognize that carrying out this expansive research agenda will require new understandings of the role of state criminal history repositories. It will be necessary to create new data-sharing agreements with other government agencies. Moreover, publishing the findings will require a level of independence more commonly associated with academic institutions than with government agencies.
More fundamentally, we must adopt a new lens. Traditionally, we view the world through the lens of the operations of the justice system. Justice is seen as the result of an assembly line that starts with the police and ends with the courts and corrections. The unit of analysis is a case, not a conflict or a person and the family or the community of the accused is rarely considered. The same is true for victims of crime and the harms they have experienced.
A more expansive research agenda would be focused on people, families and communities, not systems. This more ambitious agenda would seek to understand the harms caused by the system we have created over the past half century, as well as any benefits. Finally, we would expand our frame of reference to include community well-being, public trust and the legitimacy of the system of law enforcement as important indicators of the effectiveness of our criminal justice system.
Yes, we live in an era challenging long-standing assumptions of our approach to crime and justice, including the practice of creating criminal history repositories. But perhaps the best response is to welcome these challenges and ask how those criminal histories can be recognized as an invaluable asset in addressing these legitimate critiques of the system that has been created over the past half century.
Jeremy Travis is Executive Vice President of Criminal Justice at Arnold Ventures, and former president of John Jay College of Criminal Justice. This essay is an abridged and edited version of his keynote remarks delivered Tuesday at the 2019 SEARCH Symposium on Justice Information Technology, Policy and Research in Washington, D.C.