President Joe Biden likes big plans, and when a potential big plan evokes Franklin D. Roosevelt, he likes it even better.
Roosevelt, the 32nd U.S. president from 1933 to 1945, launched a Civilian Conservation Corps, which put some three million unemployed young men to work building and restoring parks, forests and other parts of America’s natural resource infrastructure during the Great Depression. The program lasted until the U.S. entered World War Two.
Almost nine decades later Biden plans a similarly ambitious $10 billion Civilian Climate Corps to address our contemporary environmental crisis.
But we have another crisis to contend with—a crisis in criminal justice.
The system is a shambles. Police violence is in the headlines; mass incarceration is recognized as a scourge; the racial inequities are glaring; in some cities homicides are spiking. Distrust and trauma metastasize.
The time is ripe for a Civilian Justice Corps.
A Civilian Justice Corps could inject a massive infusion of ordinary Americans into the daily operations of a criminal justice system that currently functions as the sealed-off private territory of its practitioners.
This Justice Corps would support the mobilization of more jurors, for more jury trials.
It would add to the traditional jury duty task list “ride-alongs” accompanying police, court-watching, restorative justice circles, sentencing advisory panels, participatory defense, and roles in the sentinel event reviews of the full range of negative outcomes.
It would change a system in which regular people now participate only as victims and defendants into a venue where community values are constantly present and expressed. It would exploit the remote learning infrastructure the Covid pandemic has fostered—to flood the zone with citizen observers.
It would provide a durable feedback loop—a constant, ongoing interrogation into the impact of the shortcuts, workarounds, and face-saving devices of the system’s insiders.
Reform from the Roots
This is not exactly the sort of reform that the people—a really quite startling number of people—who identify themselves as Criminal Justice Reformers in think-tanks, institutes, policy-hubs, foundations, and academic centers have in mind.
These reform organizations have proliferated in recent years. We now have, for example, the Council on Criminal Justice, which was appointed by . . . the Council on Criminal Justice.
Aspiring members of the Council are invited to seek sponsors among the existing members, then submit to a vetting process rather like that of the Union League Club.
If admitted, the successful candidate will pay annual dues and enjoy the benefits of expanded professional networks and connections, access to events, and referrals of media inquiries and speaking requests. Together, the Council’s members will constitute “a catalyst for progress based on facts, evidence and fundamental principles of justice.”
Research is promoted. Meetings are convened. Reports and recommendations are issued.
These efforts are invaluable, and I hope the Council and similar organizations continue to flourish. But they inevitably gravitate toward a top/down approach to reform that has its limits.
One way to see those limits is think about the “Reimagining Public Safety” project that many reform organizations share in the terms that people who think broadly about Safety in other contexts would apply.
The Safety Part of Reimagining Safety
The widening constellation of reform groups that influences current discourse aims to fix a broken system, but it is axiomatic among Safety specialists that there is no such thing as a “fix”—or at least that any “fix” you generate will be under immediate attack from its environment. Nothing stays “fixed.”
Criminal justice is—and behaves as—a complex adaptive system under production pressure. It has to produce case dispositions just as NASA had to produce Space Shuttle launches, or Toyota, cars.
The people operating the system make a thousand decisions every day that may be unfair, counter-productive, or even despicable, but that are always “locally rational”: They solve an immediate problem, if only for a moment.
The answer to “Why did you do x instead of y?” is frequently “Because it’s easier” or even “At least it’s cheaper.”
The safety these operators have in mind is their own safety. They are not evil conspirators; they are just trying to get through their days. The work-as-done inevitably diverges from the work-as-prescribed in advance by the Reform forces.
Daily routines incorporate a process of “practical drift.” There was never a cataclysmic meeting where a policy of “No More Jury Trials” was announced; the system simply oozed down that path of least resistance.
As Sidney Dekker explains, there is always:
A long and steady progression of small, incremental steps that unwittingly take an operation toward its boundaries. Each step away from the original norm that meets with . . . no obvious sacrifice in safety … is used as the next basis from which to depart just that little bit more . . .this slight departure is not worth remarking or reporting on.
You can see these dynamics in action in the tragic story of Kalief Browder documented by Jennifer Gonnerman in The New Yorker.
Browder spent three years being shuttled between Rikers Island and Bronx courtrooms while the system’s practitioners tried to induce him to plead guilty. At every one (of the dozens) of his docket calls and status hearings the participating practitioners were making “locally rational” decisions: trying to clear their calendars by leveraging a guilty plea.
The process culminated in the destruction of a human being when Browder committed suicide—a result no participant sought, or even envisioned.
One way to deal with these tragedies is to marshal the Reform community and to develop new policy recommendations. Recently, the New York State Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers have done just that, mounting an attack on the pervasive use of the “trial tax” (the threat of a gigantic sentence after trial if a plea is refused) utilized by prosecutors and judges to extort guilty pleas.
The comprehensive document the groups produced advocates a number of productive steps.
Among the innovations is a requirement that prosecutors record each of their plea offers. This is a shrewd move aimed at exposing patterns of accelerating coercion and building a data base that can document it.
But any courthouse veteran will tell you that within 72 hours of this “fix,” it will be subverted by a new language of winks and nods, tactical silences, and unspoken inducements―the fluent command of which distinguishes the expert practitioner from the clueless novice. (“Now, understand, I’m not offering this, but I could talk to my supervisors if….”).
“Covert work rules” multiply; “practical drift” is initiated; a tacit “going rate” is established.
These processes have a cumulative impact. Avoid jury trials long enough and the capacity to do jury trials atrophies. You no longer have the lawyers, the jurors, the time, or the energy to execute them.
There is a ratchet effect in operation too. If more case filings mean you can handle fewer jury trials, soon the fact that there are fewer jury trials seems to promise that you can tolerate more case filings.
If production pressure on the calendar means plea discussions are reduced to abbreviated haggling over numbers of months and years in prison, then the thoughtful search for appropriate treatments and programs is starved, and the programs that the search might mobilize will wither.
Then, there are no programs, so why search for one?
No Privacy Here: The Civilian Justice Corps Is Watching
The practitioners required privacy to pull this off. What the Civilian Justice Corps will do is invade that privacy.
Implicit in the idea that the goal of the criminal process constitutes a case “disposition” is the promise that not only the case but the defendant and the challenges his acts reflect are actually “disposed of”—gone, disappeared.
The defendants, their families, their victims, and their communities know better. The case may be gone, but its “disposition” leaves marks that last forever.
I have argued before in this space that the special perspective of jurors is—and was seen by Jefferson, Adams, and the others of the founding generation to be—indispensable. Juries have no past and no future—no career or professional reputation to protect. Where professionals confronted with an 80 percent likelihood, know what to do 100 percent of the time, juries go on to ask whether this case is one of the 80 percent or one of the 20 percent.
Civilian Justice Corps resources could support jurisdictions that promise to use juries in at least half of their cases: either by cutting case filings or increasing trials, or both.
But putting aside impact in that traditional role, a surge of civilian participation in the system from a variety of new vectors could initiate a sea change.
The stock-in-trade of the Criminal Justice Reformer is answers.
What the Civilian Justice Corp offers is a constantly replenishing supply of questions.
In the context of a police ride-along the civilian can ask “Why that traffic stop?” or “Why not that one?” In the context of a restorative justice inquiry he or she can ask, “What can be done besides punishment?”
Taking part in “participatory defense” efforts, civilian community members can force the question of “Why is there no rehabilitative resource available?”
Watching court proceedings, civilians can challenge the practitioners when the poor and marginalized are treated differently from the entitled.
Participating as stakeholders in sentinel event reviews of negative outcomes such as police homicides and wrongful convictions, Corps members could ask not just “Who is to blame?” but “How will you prevent this?”
Civilian presence can interrupt the private insider arrangements that have brought us to this point: the practitioners’ “We can live with ‘x’, if you can live with ‘y’” deals made when the best answer for the public is “z.”
Rather than promising a fragile “fix”; the Corps can support a culture of continuous critique and improvement.
Will this be expensive?
What our professional Criminal Justice Reformers chiefly have that our civilians lack is not expertise so much as time. Single mothers, grocery store cashiers, school teachers, and gig workers can’t easily convene and talk things over. Jury duty can become a hardship—something to duck.
We will need funds to compensate Corps members, to protect them from employer sanctions, to provide realistic day care for their children, to organize a logistical regime that exploits the remote participation capacities the Covid pandemic has forced us to develop.
Will we need to find a way to harvest the Corps’ questions, and direct our efforts at answering them. And we will need to show the Corps members that our system is responsive to their concerns.
But, revealing the expense that this communitarian criminal process requires will in itself be a good thing.
Veteran reformers such as Jeremy Travis and Bruce Western are certainly right when they argue that our society is permeated by the mistaken belief that punishment is the solution our crime problems.
But that belief didn’t just happen; it has been encouraged.
If it seems to people that punishing the homeless is cheaper than housing them, that detaining the addicted and the mentally ill is cheaper than treating them, that imprisoning the poor is cheaper than supporting and training them, the promise of quickly, finally, “disposing” of the social challenge becomes that much more attractive.
Showing that punishment is not in any sense cheaper is part of the plan. We need more eyes on the problem, and more voices in the room.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. TCR welcomes readers’ comments.