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Texas Senator and Republican presidential candidate Ted Cruz fancies himself a criminal justice reformer. Announcing his support for the Smarter Sentencing Act, which would relieve federal judges of the obligation to impose mandatory minimum sentences for certain nonviolent drug offenders, Cruz lamented that “far too many” young black men are imprisoned “many decades for relatively minor non-violent drug infractions.” But in his next breath, the senator assured listeners, “If you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system needs to come down on them like a ton of bricks.”
Like many in Washington and on the campaign trail, Cruz lives in a Manichaean world that divides the prison population between the harmless few and the predatory many. Criminal justice reform is simply a matter of culling the former from the latter. In this view, the criminal justice system has the right design but mistakenly sweeps in some of the wrong sort. Shed those, and the rest can be safely forgotten. Nothing else in the system—from policing to prosecution, from prison conditions to collateral consequences—needs to change.
Reform proposals aimed at population-cutting rather principle are dangerously incomplete. The time for tinkering has passed.
Politicians are not alone in conceiving criminal justice reform as simply a numbers game. Various groups propose cutting the prison population by arbitrary amounts. #Cut50, for instance, describes itself as “a national bipartisan initiative” whose goal is “to safely and smartly reduce our incarcerated population by 50 percent over the next 10 years.” JustLeadershipUSA is “dedicated to cutting the US correctional population in half by 2030, while reducing crime.”
Halving the prison population is a laudable goal, but population-cutting initiatives mistake a symptom for the sickness. The problem is not that we send too many people to prison, though we certainly do. The problem is that we expect prisons, punishment, and control to solve social problems of poverty, lack of opportunity, and mental illness. As a result, we have distorted and misused our entire criminal justice system—from the first contact with law enforcement, which frequently takes place in the public schools, to the lasting disabilities imposed upon people when they step out of prison. Mass incarceration is a symptom. It is not the sickness.
Furthermore, reform proposals aimed at population rather principle are dangerously incomplete. We may say that children should not be tried as adults, and the mentally ill should not be held in solitary confinement. But solutions such as these reinforce the idea that everyone else deserves to rot. Police and prosecutors may employ any tactic, judges may impose any sentence, and prisons may set any conditions for “those” people—the monsters we imagine them to be.
The most popular version of this divisive strategy is the search for the elusive low-level drug offender with no history of violence. Some people, such as Cruz, seem to think our prisons are chock full of men and women serving lengthy sentences for possession of a small amount of marijuana. But drug offenders represent only 20 percent of the prison population nationwide, and only a small fraction of these people are both low-level and have no history of violence. Tracking down this particular inmate is like hunting for a snark.
Reform will never be more than the flavor of the month unless we develop a transformative vision, an alternative organizing philosophy for criminal justice in the United States. We may continue to sand down the roughest edges of a pointedly unjust system, as we have done for the past few years. But if we are serious about fixing criminal justice, the time for tinkering is past.
• • •
Three principles should guide the transformation of American criminal justice. If we cannot live up to these principles, we will have failed:
Before elaborating on these principles, it is important to make a few observations. Though the first principle focuses on rights, people also have obligations, the most prominent of which is to refrain from victimizing others. The failure of some members of society to live up to that obligation is a major reason why we need police, prosecutors, and prisons. In other words, we do not need to abolish the criminal justice system; we need to transform it.
But in accomplishing the transformation, we should be agnostic about the amount of punishment and control imposed. Instead of quantity, these principles focus attention on a particular type of criminal justice—one that treats people with dignity, permits communities to thrive, and ensures fairness on the part of the state. As it happens, the criminal justice system would shrink dramatically if it operated on the basis of these principles. But that shrinkage, along with many other salutary changes, would be incidental to the more fundamental achievement of a new philosophy of criminal justice.
We don’t usually frame issues of American governance this way. Instead, we typically balance one interest against another: liberty versus security, for instance, or community safety versus the constitutional rights of the accused. In practice, however, these exercises lead to demonization. That is the inevitable consequence of crusades that purport to trace society’s ills to a particular group. By contrast, I do not propose weighing one good against another.
Since each principle is separate and independent, none may be sacrificed for the benefit of the other. Of course the mentally ill should not be isolated in a tiny cage for twenty-three hours per day, with no end in sight. But nor should anyone else, and the fact that some suffer more in solitary confinement does not justify the torture of those who suffer less. In the same way, the principles I propose do not privilege the rights of defendants over victims; all participants in the system have an equal right to be treated with dignity.
And most provocatively, these principles deliberately do not prioritize public safety, which has been the hallmark of the existing vision for nearly five decades. When framed as a freestanding goal, public safety became a license to kill the patient while treating his symptoms. Under the old vision, we have destroyed thousands of communities across the county in the name of keeping them “safe.” Instead, we must design a system that permits communities to thrive, for among many other desirable outcomes, a thriving community is safe.
People have a right to be treated with dignity
The first and most important step in transforming the criminal justice system is to accept dignity as an inviolable right. Without this, nothing else matters.
Since the end of the Second World War, dignity has become a staple of international human rights discourse. In the first line of its first article, the United Nations’ Universal Declaration of Human Rights proclaims, “All individuals are born free and equal in dignity and rights.” Less than six months after the Declaration was adopted in 1948, the Federal Republic of Germany passed its constitutional law, the Grundgesetz, which announces, “Human dignity is inviolable. To respect it and protect it is the duty of all state power.” Comparable passages dot constitutions, charters, and basic laws around the world.
As nations and supranational bodies have embraced dignity, so have political leaders and public intellectuals, at least rhetorically. George W. Bush spoke often of “the non-negotiable demands of human dignity,” Barack Obama has reaffirmed the American attachment to “the inherent dignity and rights of all members of our human family,” and the Supreme Court recently held that overcrowding in California prisons forced people to live under conditions depriving them of “the essence of human dignity inherent in all persons.” In all of these settings, dignity signifies the intrinsic value of human beings, shared equally without regard to the vagaries of circumstance.
Criminal justice policy has been designed by those who do not experience disorder so much as imagine it.
But the increasing universality of dignity does not, in itself, tell us why it should be the basis on which to build a new criminal justice system. What is it about dignity that suits this role? We might start by contrasting dignity with liberty, another right that conventionally occupies a prominent place in discussions of criminal justice. Liberty is undoubtedly of inestimable importance. But, unlike dignity, liberty is not inherent; the state can deprive a person of her liberty. That is the premise of any criminal justice system in a liberal state: those who refuse to follow society’s rules can be restrained in one form or another, as long as the restraints are publicly justified. Liberty is by its nature subject to compromise, and especially to arguments that purport to balance one person’s liberty against another’s safety.
Dignity, by contrast, cannot be compromised. The state cannot legitimately deprive someone of her dignity. It cannot degrade her or treat her as some might an animal. This in turn disqualifies certain arguments. The state cannot invoke the seductive language of imminent catastrophe to justify the deprivation of dignity, nor may it restrict dignity to some but not others—to the citizen, for instance, but not the visitor. Dignity extends to all people, at all times, under all circumstances. It is the profound ethical insistence that there is a point beyond which we may not pass, for, on the other side, we are no longer human.
In this way dignityalone responds to and mitigates the most pernicious impulse in American history: the frenzy to dehumanize, to construct mythical monsters who do not so much walk the street as haunt the imagination and whose specter is invoked to justify repression. This impulse has particularly bedeviled the modern criminal justice system, which has relied on an unbroken series of demons—almost always black, Latino, or poor—to coerce a frightened public’s acceptance of still more punishment and control. Liberty, with its built-in commitment to compromise, cannot resist this impulse.
Communities deserve to thrive
As criminologists have long known, crime in the United States is highly concentrated in a small number of places. Victims and offenders generally live in the same community and, especially in urban centers, share social networks. Indeed, the connection between crime and community has been invoked to justify modern criminal justice policy. The logic is deceptively simple: inner city communities are beset by crime; the more criminals we remove, the better off the community will be. The enforcement policy all but writes itself.
It has been a disaster. For decades, we have been killing the communities we are trying to save. Saturation enforcement encourages police stops for trivial violations in order to create opportunities for street-level interrogations and searches. The result is that nearly half of black men—and 40 percent of white men—under the age of twenty-three have arrest records, which can have long-term social and economic consequences. Just a weekend in jail has been shown to have serious adverse effects. Yet according to data assembled by the Sentencing Project, as many as one in three Americans has been arrested or convicted of a crime.
Perhaps this hyper-criminalization could be justified if criminal justice policy made communities a better place to live. But it doesn’t work that way. Some of the most important research in criminology over the past fifteen years, such as that documented by Todd Clear in Imprisoning Communities (2007), has shown that the endless churning of the incarceration cycle—the thousands of young men and women repeatedly removed from their neighborhoods, returned, and removed again—systematically destabilizes communities by disrupting the intricate but fragile webs of connection that hold them together.
In fact, a recent study of the incarceration cycles in Boston and Trenton has shown that a high incarceration rate not only destabilizes disadvantaged communities; it actually increases theincidence of crime. While small levels of incarceration can reduce the overall level of crime, the effect reverses as incarceration approaches the rates of the last few decades. After a certain threshold, the overall level of crime goes up. Researchers have also found that in Newark, so many have been incarcerated that additional imprisonment is having essentially no effect on crime rates.
In spite of this, the policies of the past few decades could conceivably be justified if they were the product of local, self-determined choice. But the men and women living in the communities ostensibly served by saturation enforcement strategies are often the people who object to them most vehemently. For too long, their voices have gone unheeded. Instead, criminal justice policy has been designed and imposed by those least affected by crime, by distant politicians and pundits who do not so much experience disorder as imagine it. So in addition to giving large swaths of the community a needless criminal record, and in addition to destabilizing the community through the incarceration cycle, modern criminal justice policy strips a community of its political voice.
Government has an obligation to be fair
When it comes to criminal justice, fairness has a very specific meaning. Police cannot possibly arrest, nor prosecutors charge, more than a small fraction of lawbreakers. Within broad limits, therefore, they are free to decide where they will concentrate their limited resources and whom they will surveil, stop, search, arrest, and prosecute. Indeed, discretion laces the criminal justice system. Legislators decide what conduct is criminal and how severely it will be punished. Trial judges make countless judgments, from the first determination to set bail to the last interpretation of the law. Prison administrators decide where inmates are housed, which privileges they enjoy, and what programs are available to them.
In this context, then, to be fair is to be even-handed. Two people who commit the same offense, or who commit different offenses that cause equivalent harm, or who otherwise present the same claim for some right or privilege in society, may not be treated differently. As simple as this seems, it has proven impossible to achieve, in part because of the legacy of discrimination. The most careful research consistently shows, however, that formal, overt discrimination of the sort that poisoned criminal justice in the age of Jim Crow plays a small part in the modern criminal justice system. Today, the problem is more insidious. Instead of Bull Connor, we are confronted with what sociologist Eduardo Bonilla-Silva calls “racism without racists”: the culturally embedded and far-reaching lattice of implicit biases and racialized practices that both derive from and perpetuate stereotypical assumptions about black criminality.
Though these practices appear throughout society, their effect on criminal justice is especially pernicious. As many scholars have documented, most white Americans associate crime with blackness. Worse, they believe that the most feared criminal behavior—menacing disorder, violence, and drug dealing—is a more serious problem when attributed to blacks than whites. Thus a black man who commits a murder is much more likely to be sentenced to die than a white man, even after controlling for other variables. The war on drugs offers a comparable illustration. Today heroin is considered a “white” drug, and its abuse has been constructed as a public health crisis requiring a therapeutic solution. Crack, by contrast, has long been viewed (wrongly) as a “black” drug requiring a law enforcement solution. So white addicts go to treatment and black addicts go to prison.
Thanks to these deeply ingrained distortions, police focus on black communities far more than can be justified by crime statistics alone. In fact, research has shown that as the proportion of blacks in a city rises, so do arrest rates and expenditures on policing, even after taking into consideration official crime rates. In other words, the social construction of black criminality, rather than actual crime, justifies the aggressive police presence in black communities. What is true for policing is also true for other discretionary decisions in the criminal justice system, from the decision to prosecute to the sentence imposed. In short, fairness—even-handed application of neutral rules—remains wanting, in spite of the repudiation of formal discrimination.
• • •
A genuine commitment to these principles would dramatically reshape the criminal justice system. Some changes, such as the elimination of long-term solitary confinement, are obviously warranted: the practice is inconsistent with the non-negotiable demands of human dignity and cannot be salvaged by the morally bankrupt expedient of excluding children and the mentally ill. Other changes reflecting these principles have already begun. For instance, in 2002 the Supreme Court held that Alabama could no longer shackle prisoners for hours at a time to the “hitching post.” In striking down the practice, the Court quoted approvingly from a decision that denounced similar forms of corporal punishment in prison as affronts to “contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess.”
Changes in police practices can be even more consequential. Consider, for instance, “zero tolerance” policies such as the stop-and-frisk program operated by the New York Police Department from 2004 until 2012. The avowed purpose of stop-and-frisk was to get guns off the streets. Police made nearly 4.5 million stops in pursuit of that goal. But according to an analysis of detailed NYPD records by legal scholar Jeffrey Fagan, the NYPD found a gun in roughly one of every 700 stops yet used force in one of every five. Police were about 140 times more likely to use force against a member of the community than they were to find a gun, all in the name of supposedly keeping the community safe.
And to describe this encounter as a “frisk” trivializes what often took place: pockets emptied and belongings strewn on the street, papers demanded and scrutinized, names run through databases for outstanding violations, no matter how trivial. Mutual suspicion and animosity pervaded the encounter. Frequently, the suspect was forced to wait out the ordeal in handcuffs, in full view of friends and neighbors. The vast majority of these interactions did not produce evidence of criminal activity, except perhaps the “crime” that justified the original stop. And so the person walked away humiliated in his own community, furious at the police, and socked with a summons for jaywalking or failing to signal a turn when he knew full well that none of this would have happened in a white neighborhood.
If New Yorkers had borne the brunt of this program evenly, we could at least say the policy was fair—foolish, but fair. Yet in every year of its operation, the police stopped, frisked, and used force on about nine blacks or Latinos for every white person. Stop-and-frisk thus runs afoul of all three principles. The individual is deprived of his dignity, the community is treated as occupied territory, and the government fails to treat people even-handedly.
Yet politicians and pundits call for a return to stop and frisk. New Jersey Governor and Republican presidential hopeful Chris Christie said that if he were mayor of New York, “Stop-and-frisk would be back in about five minutes and we would empower the police, not undercut them.” Of course, nationwide, stop-and-frisk is still with us.As political scientist Charles Epp and his colleagues have shown, New York’s stop-and-frisk operated much like comparable saturation enforcement strategies all over the country. Christie’s prattle is a sign of how far we have to go to transform criminal justice.
Others may raise more reasoned objections. One obvious concern is that the principles I have proposed are hard to define. Demands for dignity and fairness may reflect self-interest. What looks to one observer like a thriving community may, to another, look like a neighborhood just scraping by. The principles, in other words, are inherently contested.
But this is no objection at all. The same is and will always be true of the values Americans have long claimed to hold dear: liberty, equality, the rule of law. These and other expressions are hopelessly abstract and acquire meaning only in the superheated crucible of the public square. Not long ago, precious few would have said that liberty included the right of same-sex couples to marry. Today, it is the law.
Some may caution that government will honor the three principles in word but betray them in deed. Their warning is well taken. After all, this country convinced itself that separate was equal and torture was “enhanced” interrogation. The concern is that the principles cannot be written into the law, and, in the absence of enforceable legal obligations, duplicity will prevail. But this is just the latest expression of an old fantasy that laws and constitutions might bestow what we have not yet embraced as our own. In 1944, reflecting on the perennial aspiration for liberty, Judge Learned Hand wondered “whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.” “These are false hopes,” he said. “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. . . . While it lies there, it needs no constitution, no law, no court to save it.”
Yet, if genuine transformation of the criminal justice system is at last upon us—if we finally accept dignity as humanity’s irreducible core, demand that government be truly fair, and insist that communities be permitted to thrive—the written law will follow. But if we still have not arrived—if instead of transformation we seek only modest reform that leaves our symbolic demons intact—then no written law can bridge the divide between reality and aspiration.
Joseph Margulies is Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar and Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. His books include Guantánamo and the Abuse of Presidential Power and What Changed When Everything Changed: 9/11 and the Making of National Identity.
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