Start Here: A Road Map to Reducing Mass Incarceration

By Greg Berman

Publishing into the Peak of the National Conversation: There is consensus that mass incarceration must end; very few books provide a practical roadmap for reform and this book couldn’t be more timely.

National Expert: Greg Berman is a go-to authority on practical reforms in the criminal justice system, particularly on diversion programs such as drug courts.

The New Press reputation in the field: this book will benefit from The New Press’s leadership and expertise in criminal justice publishing and its cutting-edge authors who will blurb and talk up this book.

Affiliations: The book will be a calling card of the Center on Court Innovation

• Language: English
• Publisher: The New Press
• Release date: Mar 6, 2018
• ISBN: 9781620972243

Greg Berman

Greg Berman is the director of the Center for Court Innovation, a New York–based think tank that works to improve the performance of state courts and criminal justice agencies. He is a co-author, with Julian Adler, of Start Here: A Practical Guide to Reducing Incarceration (The New Press).

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ALSO BY GREG BERMAN

Good Courts (with John Feinblatt)

Reducing Crime, Reducing Incarceration

Trial & Error in Criminal Justice Reform (with Aubrey Fox)

© 2018 by Greg Berman and Julian Adler

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

Requests for permission to reproduce selections from this book should be mailed to:

Permissions Department, The New Press, 120 Wall Street, 31st floor, New York, NY 10005.

Published in the United States by The New Press, New York, 2018

Distributed by Two Rivers Distribution

ISBN 978-1-62097-224-3 (e-book)

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Names: Berman, Greg, author. | Adler, Julian, author.

Title: Start here: a road map to reducing mass incarceration / Greg Berman and Julian Adler.

Description: New York: The New Press, [2018] | Includes bibliographical references.

Identifiers: LCCN 2017043125

Subjects: LCSH: Prisons—Law and legislation—United States. | Imprisonment—United States. | Correctional law—United States. | Criminal justice, Administration of—United States. | Law reform—United States.

Classification: LCC KF9730 .B47 2018 | DDC 364.60973—dc23 LC record available at https://lccn.loc.gov/2017043125

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Composition by dix!

This book was set in Bembo

10  9  8  7  6  5  4  3  2  1

For Alfred Siegel (1951–2014)

Friend, colleague, inspiration

CONTENTS

Introduction

1.Who Is Behind Bars?

2.Planting Seeds

3.Taming the Green Monster

4.Calculated Risks

5.Risk, Release, and Rikers Island

6.A Crazy Idea

7.Challenging Populations

8.States of Change

Conclusion: A Whole Bunch of Lightbulbs

Acknowledgments

Notes

INTRODUCTION

Sometimes the message is delivered by thousands of voices on the streets shouting black lives matter.

Sometimes the message is found within the pages of carefully argued books like Locking Up Our Own or Race to Incarcerate that describe the evolution of criminal justice policy in the United States.

And sometimes the message is conveyed through numbers by conservative policymakers decrying the taxpayer dollars that are spent on prisons.

Whether presented in moral, historical, or fiscal terms, the underlying message is the same: the United States locks up too many people.

Roughly 2.3 million people are currently incarcerated in American jails and prisons—a 500 percent increase over the past forty years. It costs an estimated $80 billion a year to keep this machine going.¹ But the human costs are much greater. It is difficult to convey the hardships caused by incarceration in statistics. But it is fair to say that spending time in a county jail or state prison or federal penitentiary typically has a devastating impact on inmates and their families.

Our correctional facilities are no longer designed with rehabilitation foremost in mind, if they ever were. Many observers have labeled these facilities warehouses. But the truth is far worse—they are accelerants of human misery. If you are poor or mentally ill or struggling to keep your family together when you enter, the chances are that all of these conditions will be markedly worse when you come out.

The negative effects of incarceration are felt by anyone who spends time behind bars. But people of color bear a special burden, considering the history of racism in the American criminal justice system. Our police and prosecutors and courts have not traditionally provided Americans of color with the same protections that they have afforded other citizens. Indeed, the justice system has often been an instrument of oppression, enforcing discriminatory laws and an unjust social order. For many Americans, our jails and prisons are a potent symbol and a present-day manifestation of a litany of historical wrongs.

But this book is not about describing the problem of incarceration in the United States. We take that as a given. Rather, we seek to spell out what is to be done. Instead of decrying the status quo, we want to articulate an affirmative vision of how to reform the American justice system.

We have dedicated our professional lives to this task. We both work for a nonprofit agency, the Center for Court Innovation, that has created a broad range of alternative-to-incarceration and crime prevention programs in the New York area. These programs engage a wide variety of participants, from adults who have committed serious felonies to young people who have engaged in minor rule-breaking. At the Center for Court Innovation, our goal is to show that, contrary to conventional wisdom, it is possible to reduce both crime and incarceration at the same time.

Over the years, we have seen many remarkable transformations. Sullen teens, parolees with lengthy rap sheets, individuals with histories of trauma and victimization . . . these populations (and many more besides) can move from criminality to law-abiding behavior if they are given the right support.

How can these kinds of success stories become the norm rather than the exception? In this book, we attempt to answer this question. We begin where many books about criminal justice end: with solutions.

In the pages that follow, we outline changes to business as usual that we believe can have a significant impact on justice in America—enhancing the fairness of the system, improving the lives of thousands of defendants, and altering the trajectories of crime-plagued communities. We are not utopians. We focus on concrete, ground-level improvements that do not require fundamental changes in the structure of our society. These are real-life reforms that state and local policymakers and practitioners can make in the here and now to reduce our reliance on incarceration.

The good news is that there are dozens of good ideas to choose from. In recent times, innovators have advanced a number of potentially impactful strategies, including changing arrest practices, speeding criminal court case processing, and training criminal justice officials to recognize implicit bias. These, and other ideas, are worth pursuing. But we have chosen to focus on three broad investments that we believe are essential if the justice system is going to live up to its highest ideals in terms of both fairness and effectiveness:

ENGAGE THE PUBLIC IN PREVENTING CRIME.

Our safest neighborhoods, whether rich or poor, do not feel like police states, with officers lurking on every corner. As Jane Jacobs articulated more than fifty years ago in The Death and Life of Great American Cities, a crucial element of neighborhood safety is the availability of responsible eyes on the street, and the willingness of neighbors to enforce social norms and address conditions of disorder. More recently, Robert Sampson of Harvard University has documented the importance of what he labels collective efficacy—essentially, a neighborhood’s social infrastructure and capacity for joint action on its own behalf, including monitoring and managing the behavior of those who break the rules.

Yet, as currently constructed, the American criminal justice system does precious little to encourage collective efficacy or social cohesion in high-crime neighborhoods. Indeed, a great deal of conventional practice, including overaggressive enforcement and incarceration, tends to undermine the very elements that thinkers like Jacobs and Sampson have identified as crucial to healthy neighborhoods.

How can the justice system help produce safety without relying on traditional strategies—arrest, prosecution, and incarceration—that can, over time, undermine the health of a community? This is a crucial question in the fight against incarceration. Safer neighborhoods mean less crime. Less crime means fewer court cases. And fewer court cases means fewer people sent to jail or prison.

We believe that, if the justice system hopes to reduce victimization and help produce safer neighborhoods, it cannot simply react after crime occurs—it must make a deep investment in crime prevention. And it must reach out to community residents to engage them in the process.

This means participating in campaigns to combat street-level gun violence. This means investing in youth development programs so that teens have pathways to pro-social activities, educational supports, and career opportunities. And this means addressing visible conditions of disorder and reinvigorating public spaces by enhancing visibility and creating programming that brings people out of their buildings to participate in the public square.

As we will show in the pages that follow, these kinds of grassroots efforts are not possible without the people who live and work in our neighborhoods. Criminal justice agencies—not just police, but prosecutors and probation and defense agencies and the courts as well—need to involve local voices in identifying local issues, setting local priorities, and crafting local solutions. And they need to earn the trust of skeptical communities by listening attentively and creating interventions that are designed to address the unique needs and concerns of their target neighborhoods.

TREAT ALL DEFENDANTS WITH DIGNITY AND RESPECT.

A few years ago, researchers from the National Center for State Courts came to evaluate a project of ours in Brooklyn—the Red Hook Community Justice Center. What they found surprised them.

At Red Hook, defendants who have committed misdemeanor offenses are sentenced to perform community service or participate in social service groups for a few days, as an alternative to fines or a short stay in jail. The researchers thought this kind of approach to sentencing was a good thing. They anticipated that it would reduce the use of incarceration and improve conditions in the neighborhood. But they cautioned us that it was highly unlikely that these kinds of short-term interventions would make any difference at all to defendants’ lives.

When the evaluators looked at the data, however, comparing participants in the Red Hook program to similar defendants whose cases had received conventional sentences, they discovered that, over the course of three years, the Red Hook defendants had lower re-arrest rates. How was this possible?

The researchers concluded that the answer was simple: Red Hook managed to improve the behavior of participants because it changed the way they felt about the justice system.

From its well-lit entrance with specially trained court officers to its holding cells with specially treated glass instead of bars, the Justice Center in Red Hook is designed to be a user-friendly building that communicates respect for all who pass through its doors. This extends to the courtroom, where Judge Alex Calabrese speaks to defendants using plain language and goes out of his way to give them a chance to tell their side of the story. In Red Hook, all of these small improvements in the atmospherics of the court experience added up to something major: improved compliance with the law.

As it turns out, Red Hook is the living embodiment of an idea known as procedural justice. Initially expounded by Yale law professor Tom Tyler, the basic concept of procedural justice is straightforward: people do not comply with authorities if they do not believe those authorities to be legitimate. So if you want to encourage law-abiding behavior, it is essential to improve the way that the public (and defendants in particular) perceive the justice system.

At first glance, this might seem a daunting challenge, given how badly the image of justice in this country has been tarnished over the past few years. But we believe that by tweaking the way that police officers, judges, and other criminal justice officials interact with the public, it is possible to improve trust in justice. This means moving from a factory model, where cases are processed like so many widgets, to a customer service orientation that recognizes the fundamental dignity of each individual who comes into contact with the justice system.

In the chapters that follow, we will tell the stories of criminal justice reformers who are trying to reorient the justice system in a way that communicates respect for the public. We will also highlight programs that go a step further, attempting to bring, for lack of a better expression, a dose of love into the lives of defendants. In our experience, the best way to change the behavior of defendants is by creating caring relationships with social workers, judges, mentors, clergy, family members, employers, and others. Almost no one transforms their life without positive connections with their fellow human beings.

LINK PEOPLE TO EFFECTIVE, COMMUNITY-BASED INTERVENTIONS RATHER THAN JAIL OR PRISON.

Many prosecutors and judges, if you can catch them in an unguarded moment, will admit that they do not like sending people to jail or prison. And many defense attorneys will acknowledge that they don’t enjoy seeing the same clients with the same problems—addiction, mental illness, unemployment, family dysfunction—return to court over and over again accused of new crimes. A common complaint from criminal justice officials is that they simply lack good options; since they do not have alternatives that they trust, they default to incarceration. If we are to reduce the use of jails and prisons in this country, we must take these concerns seriously.

In recent years, a number of community-based interventions have been documented to change the behavior of offenders. These include programs that link addicted defendants to judicially monitored drug treatment, targeted therapies that seek to alter self-defeating patterns of thought and behavior, and community-focused courts that use community restitution and social services instead of short-term jail sentences and fines.

Over the last generation, we have also learned a lot about how to assess individual defendants’ risk of re-offending. There is no longer a need for criminal justice officials—be they probation officers,