Three Safe And Helpful Ways To Reform Criminal Justice

Criminal justice reform was all the rage for a while there. From the FIRST STEP Act signed by President Donald Trump in December of 2018, to various local government cash bail and pretrial detention reforms, to the sweeping overhaul of the D.C. Criminal Code, the United States is conducting a range of piecemeal experiments that have revised sentencing, decreased the prison population, and sought to reduce recidivism while still ensuring public safety.

But are proponents of criminal justice reforms focusing on areas where they can really have a positive effect? American cities are turning back some of their most ambitious policies amid political backlash and rising crime. By the end of the 2022 campaigns, many of those Democrats who had campaigned on reform were pitching tough-on-crime messages.

According to the Pew Research Center, overall violent crimes rates have remained stable, albeit with the exception of murder, which has increased significantly. This may explain the general perception that violent crime is on the rise, though a lag in the data is another possible explanation. Regardless, the success or failure of these experiments is still an open question, but the laboratory of democracy that is our federal system will yield results eventually.

What is even more important to understand is why the local and federal government is initiating these experiments in the first place. If it isn’t broken, why fix it. The meddling indicates that many of us believe the system is broken. There is probably no greater domestic threat to the rule of law than the appearance of injustice in the justice system. Justice must not only be done, it must also be seen to be done. If people do not believe that justice is being served, they are liable to take it into their own hands.

Our justice system would ideally immediately identify the guilty, who would then provide restitution to his or her victims. Guilty parties would be reformed and refrain from future criminal acts, after which their non-criminal status would be restored and they would be welcomed back as full citizens, unencumbered by badges of past criminality.

To put it bluntly, none of this happens. Law enforcement struggles to solve many crimes, even the most serious (nationally, less than 70% of murders are solved); our recidivism rates are above 50%; and to be a convicted felon is to live a life of diminished personal, professional, political opportunities. Even worse, it is far from clear that the innocent are not punished alongside the guilty. What is to be done?

Proposal #1: Pool public prosecutors and defenders into one office and make each of them play both offense and defense.

Blackstone’s famous ratio says, “It is better that ten guilty persons escape than that one innocent suffer.”

No one wants to live in a society where the accused are guilty until proven innocent, or where penalties are applied first and then justice determined later. We are interested in the truth of the matter: who did what to whom. In our adversarial system, each side advocates before an impartial judge at trial. For this arrangement to succeed, attorneys for both sides need to be equally matched in skill and resources. Unfortunately, this is often not the case.

Governments plead poverty, but they expend monumental resources bringing cases against the accused that dwarf those available to most Americans.

Furthermore, prosecutors charge the accused with every possible crime for which they can secure an indictment from a grand jury (which is not an adversarial venue, a fact that goes a long way to explain why they could indict a ham sandwich)—not simply those they are confident they can prove beyond a reasonable doubt in court. They do so to increase the pressure on the accused to accept a plea bargain, thereby securing a conviction and avoiding the financial and evidentiary costs of a trial. That more than 95% of all cases are resolved this way makes a mockery of the Constitutional guarantee of trial by a jury of one’s peers.

One solution is to pool the public prosecutors and defenders into a single office where each attorney is required to both prosecute and defend. Attorneys’ base salary would be the same and bonuses would be paid out of a trial bonus pool divided according to the number of charges (and perhaps weighted according to the seriousness of each too).

If the prosecutor were to charge ten equally serious crimes but fail to secure a conviction on nine of them, for example, the defense attorney would claim 90% of the bonus pool. This would better align the interests of the prosecutor with his or her charging behavior.

Proposal #2: Take a hard look at the laws on the books and eliminate many of them.

The United States is a heavily regulated society. Federal laws, rules, and regulations (the latter two having the force of law, despite being the product of the executive branch) number in the hundreds of thousands of pages. Add in state and local laws, ordinances, rules, and regulations and this inevitably produces a situation where law-abiding individuals merely going about their day accidentally and unknowingly commit crimes, including felonies.

Harvey Silvergate’s book Three Felonies a Day: How the Feds Target the Innocent, details the dangers this situation poses to American liberties. If everyone is guilty of some crime, enterprising prosecutors can find legitimate charges to bring against anyone. “Show me the man and I’ll show you the crime” is not merely a maxim of Lavrentiy Beria, but our actual situation.

Selective enforcement of the law through prosecutorial discretion also pushes our system of government from the rule of law to the rule by law, which guarantees different and unequal treatment.

The solution is to undertake a long-term, comprehensive assessment of the laws, rules, and regulations on the books and to identify those laws that are rarely charged or selectively enforced—and repeal them. Every new proposed law, rule, and regulation should have a mandatory sunset date and metrics of success that must be met for the law to be reauthorized. Laws that fail to achieve their stated outcomes should not remain on the books waiting to snag an unsuspecting citizen.

Proposal #3: Those who have paid their debt to society should be treated accordingly.

Why do we punish those who are convicted of crimes with the deprivation of life (capital punishment), liberty (incarceration), or property (fines)? The names of the government departments charged with the task offer a clue: they are the Departments of Justice and Corrections—not the Departments of Vengeance or Punishment. 

The justice we seek is neither simply retributive nor concerned with punishment for punishment’s sake. This is not an Old Testament eye for eye and tooth for tooth mechanistic balancing; balancing Justice’s scales is more complicated. 

Our system aims to deter future criminal activity and reform criminals so they do not repeat their mistakes. Restitution is twofold: the victims are made whole and the convicted’s non-criminal character is restored.

Determining restitution is difficult. Windows can be fixed. Doors can be rekeyed. Lost property can be returned or repurchased. With time, wounds will heal; but psychological violation and physical scars may last a lifetime—and restitution for the dead is impossible.

Nevertheless, we determine the debt owed in terms of time and money and then collect the payment. But when the debt has been paid, what then? We don’t cancel the debt. A felony conviction is essentially a life sentence—the convicted is always a felon with diminished personal, professional, and political opportunities no matter how much he or she has reformed.

This approach does not incentivize rehabilitation and it does not make a former criminal less likely to commit further crimes. Once the debt to society is paid, we should both forgive and forget; those who have fulfilled the terms of their sentences should be welcomed back to society as full citizens. Their criminal records should be sealed and only opened for sentencing consideration if they are convicted of a future crime.

People tend to rise to the occasion when expectations are high and to stoop down when they are low. Maybe it is time we raise ours.