Systemic Reform: Ideas for Improving Criminal Justice

With demands for criminal justice reform gaining traction, it is imperative that we translate that energy into specific policy demands that re-align funding priorities.

Central Premises

• Public health issues, such as mental illness and addiction, should be separated from the criminal justice system as much as possible. Police Officers and Prosecutors are not trained to be Social Workers, and the demands placed on them to serve as the primary response system for socioeconomic problems is a significant contributing factor to why our criminal justice system is dysfunctional.
• Criminal justice interventions, whether through diversion or traditional sentencing, should focus on addressing an individual’s underlying causes of misconduct and provide responses tailored to an individual’s specific needs and level of need for intervention. Incarceration should be the option of last resort.
• Efforts to reform criminal justice must always respect the needs of victims. Restitution for economic loss incurred by victims must be honored, either through the traditional prosecutorial system or through alternative programming. The criminal justice system should provide opportunities for reconciliation and healing between victim and offender through restorative justice practices whenever possible.
• Government-sponsored interventions should be restorative, rather than punitive, unless extraordinary circumstances exist. The idea that “some people are just bad people” dehumanizes individuals who become involved in the criminal justice system. It is a toxic and self-defeating ideology. Instead, we should think of the individuals who may be “beyond redemption” as the exceptions that prove the rule.
• We need to establish a continuum of accessible services that address the underlying causes of criminal misconduct at every step of the process: pre-arrest, pre-filing of criminal charges, post-filing of criminal charges, and post-incarceration.
• By acknowledging past inequities and creating opportunities for second chances, we can enable our systems of governance to retroactively address overly-punitive sentences and work towards repairing the harms inflicted by a dysfunctional criminal justice system.

A Framework for Reform

One of the key frameworks emerging in criminal justice programming today is the “risk-needs-responsivity” (RNR) model. This model incorporates “risk assessment tools” that categorize individuals based on their likelihood to remain engaged in criminal activity. The basic premise of this framework is that programming and interventions should be tailored to an individual’s level of risk. When a low-risk individual is given a high-level intervention, it actually increases that person’s likelihood of recidivism. The same is true in reverse, that high-risk individuals who receive low-level interventions typically derive no benefit from that programming.

This framework is useful to contextualize the criminal justice system as a whole. In order to effectively increase public safety by reducing recidivism rates, the criminal justice system needs to make room for a robust continuum of different rehabilitative programs tailored to meet specific needs and levels of individual risk. This requires a sustained long-term focus on criminal justice reinvestment as a means of transformational change.

The truth is that the goal of recidivism reduction is very rarely accomplished in the traditional court system through the sentencing and plea bargaining process. These prescriptions are largely punitive in nature, rather than restorative. The impact of using standardized sentencing guidelines is an ineffective criminal justice system dehumanizes the individual and frequently neglects opportunities to address specific underlying causes of criminal misconduct because these guidelines follow a “one size fits all” approach. Crime X results in Penalty Y, with a little bit of wiggle room for negotiation and “prosecutorial discretion.”

With that core premise of recidivism reduction in mind, consider again the RNR model. For someone who is experiencing a mental health crisis, is criminal justice involvement really a necessary intervention in most cases? By exposing these people to the criminal justice system in the first place, we actually increase their likelihood of continued criminal misconduct. This is the basic idea behind calls to “decriminalize mental illness.” However, we have constructed a system in which criminal justice interventions are one of the most prominent delivery mechanisms for mental health treatment. This approach is inherently counter-productive.

De-escalating Emergency Responses

The intellectual framework of the risk-needs-responsivity model should be expanded to include decriminalization and depenalization of public health issues and crimes motivated by economic need. If we consider the level of risk associated with these particular afflictions, it requires a low-level intervention. This means focusing on the widespread accessibility of treatment services and social programs that promote self-sufficiency and replacing criminal citations with referrals to those services.

Even in communities that have a wealth of social resources to address these underlying causes of misconduct, awareness of these resources is often lacking. Instead of using the criminal justice system as a vehicle to connect people to resources, we should put resource connection front-and-center. Yet we live in a world where our first response to these issues is to send a police officer with a gun and handcuffs.

One of the more paternalistic arguments that I have heard in favor of incarceration for the mentally ill and drug addicts is that jails and prisons provide treatment services. Although these resources should absolutely be available to inmates and funding for these types of programs should be increased, the idea of incarceration as a service delivery vehicle is inherently flawed because it runs afoul of the RNR framework. By providing an overly-escalated response public health issues and economic opportunity deficits, we are escalating levels of individual risk and increasing the likelihood of future criminal justice involvement for these specific populations.

This is why it is entirely necessary to create new categories of first-responders. In addition to the Police, the Fire Department, and the Ambulance, we need to create and integrate a Mental Health and Addiction Team into our emergency response framework.

Instead of taking these individuals to a county jail, why can’t we take them to a treatment navigation center instead as the initial response?

Abolishing Fines and Fees

Thoughout my years working in criminal justice, there was always one thing that I could never quite wrap my brain around: fines and fees. It makes absolutely zero sense to take someone in poverty who commits petty theft to meet their desperate economic needs and “solve the problem” by giving them more financial stress. It’s inherently counterproductive to the goal of addressing underlying causes of crime. The dirty secret, however, is that many localities rely on these fines to fund their judicial system. Essentially, the poor are taxed to support a system that further perpetuates their own poverty trap. Nothing about this makes any sense from a restorative perspective.

The most prevalent alternative opportunity to address those financial obligations is to convert the amount owed into time served in a local jail. This also makes no sense, because it converts what would be a revenue for the state into a cost burden and it is treated by the criminal justice system as equal repayment. The fact that this is an long-accepted practice proves that revenues from criminal fines and fees are wholly unnecessary to the proper administration of justice. Monetary fines associated with criminal offenses should be completely abolished, and whatever funding is necessary to address that gap for our courthouse staffing needs should be picked up by the broader base of taxpayers. In the long-term, supporting programs that provide alternatives to court-based intervention, i.e. de-escalation of emergency responses, pre-arrest diversion, and pre-filing diversion, this additional funding burden can be significantly lessened by providing additional “exit ramps” for the traditional criminal justice process.

The idea of a fine as a “repayment to society” is woefully anachronistic and oppressive; there are better, more productive ways that we can encourage to repay that debt. By focusing sentencing outcomes on rehabilitative activities that engage with social service providers, we can ask offenders to repay their debts by addressing their own personal likelihood of recidivism which will decrease the future cost burden of the criminal justice system. In the absence of substantive reform at the state level, it is imperative that prosecutors re-assess traditional sentencing guidelines and use their discretion to create more efficient outcomes.

The only justifiable financial penalty for criminal misconduct is restitution for economic loss to a direct victim. These obligations rightfully should take precedence over arbitrary fines imposed by a random (often appointed and un-elected) local Judge. Restitution is a central tenant of restorative justice; the individual losses incurred by direct victims must be addressed in order to have a criminal justice system that sufficiently values all of its stakeholders. But repayment plans for these debts should be tailored to an individual’s economic circumstances.

Diversion Programming and Restorative Justice

One of the most powerful alternatives to traditional criminal justice is the concept of restorative justice. This philosophical framework, based on indigenous practices, provides opportunities for reconciliation with the larger community and with direct victims while facilitating productive outcomes. It was, from my perspective, the most sensible approach to crimes that do not cause irreparable harm.

Yet regardless of how active a prosecutor’s office may be in promoting these initiatives, there are structural issues that need to be addressed. Chief among these issues is the unstable funding commitments to these reform initiatives. Rehabilitative programs are typically funded through state and federal grants, and long-term funding sustainability is a problem that needs to be addressed by local governments through targeted criminal justice reinvestment that balances funding priorities.

Another significant issue, which dove-tails into the first problem, is that diversion is handled in a rather inverse way. Prosecutors debate whether or not a case is suitable for diversion, rather than approaching it from the inverted perspective: “is this case truly worthy of prosecution?” Diversion should be the default position unless there are extraordinary circumstances, such as higher-level felony charges or a substantive criminal history.

As a result of this backwards ideology, funding for these initiatives are often the first things that a prosecutor’s office will threaten to cut when faced with public scrutiny over their budget allocations. Diversion programs inherently decrease the caseload of prosecutors; investments in these programs spurred by grant funding should be sustained by a targeted reinvestment of funds that decrease the number of full-time prosecutors.

Adult Reentry Programming

One of the most pressing gaps in the criminal justice continuum of services is adult reentry programming. What happens to an inmate after their time is served? Often, they are released back into the world with no sense of direction or realistic ability to attain a productive, self-sufficient lifestyle. By failing to provide proper support for reintegration, we are essentially condemning the large majority of ex-convicts to inevitable recidivism. This is completely counter-productive to the goal of public safety.

Research shows that individuals on probation who do not violate their terms within the first year of their sentence are exceedingly unlikely to violate their probation in the remaining years. However, staff time still goes towards supervising these individuals. This is an inefficiency that presents an opportunity for criminal justice reinvestment.

Elected District Attorneys wield an incredible amount of discretion; a District Attorney in partnership with the local Probation Department, for example, could simply approve early termination of probationary periods for individuals who do not violate within the first year of their sentence. This would free up staffing time spent on unnecessary supervision, which could be reallocated to focus on reentry programming.

Addressing Past Inequities

In California, Assembly Bill 2942 (2018) creates a process for the recall of a previously prescribed sentencing in criminal cases. This new procedure creates an incredible opportunity to “right the wrongs” of the criminal justice system.

In order to ensure accountability, local District Attorneys should establish “Sentencing Review Units” to go through and reconsider past sentences that are deemed retroactively excessive through a deliberative process. Independent counsel would be particularly valuable to this process. In addition, District Attorneys should proactively expunge or reduce conviction levels for eligible crimes under state law (such as Proposition 47), and proactively expunge criminal records for individuals who go through diversion programs, rather than relying on past defendants to initiate that process of their own accord.

Action Items

• Creating alternative first-response units to address non-violent calls that deal with mental health, addiction, and poverty crimes.
• Establishing alternatives to criminal justice intervention that address public health issues without the threat of criminal charges and incarceration as a coercive factor.
• Promoting alternatives to prosecution as the central component of the post-arrest criminal justice system.
• Reinvestment of funds to support diversion programs and alternative first-response programs that align with the fact that the existence of these programs decrease workloads for enforcement-based positions.
• Creating a role for social workers to make recommendations for sentencing terms, based on an individual’s specific risk factors.
• Integrating risk assessment and diversion opportunities at every level of the criminal justice system.
• Abolition of monetary criminal fines as part of sentencing guidelines.
• Reform of the restitution payment process to increase the likelihood that these obligations are achievable by providing supports to offenders that promote economic sustainability and flexible repayment plans, while debts to victims are paid up-front by the government.
• Automatic approval of early termination of probation for individuals who do not violate their terms within the first year of their sentence.
• Reinvestment of funds for local Probation Departments to support robust Adult Reentry Programs that engage with inmates to plan for release and connect to external services while they are still incarcerated.
• Establishing an independent “Sentencing Review Unit” to go through past convictions, audit results, and propose re-sentencing when appropriate.
• Replacing “prosecutorial discretion” with “prosecutorial restraint.”