How a justice system rooted in empirical evidence would operate

Advocates for change in the criminal justice system are tireless, persistent, and brilliantly well-informed. But as any of them can tell you, this has been a game of inches, not yards. Reforms are made one specific issue at a time; which puts us in a perpetual state of defensive positioning, fighting over piecemeal legislation, rather than architecting a vision. This is especially true today, where “reform” has been co-opted into a desperate game of whack-a-mole, with activists breathlessly fighting back against the latest affront to basic human decency, trying to find that apolitical moral common ground that seems to be steadily receding.

Such is the nature of resistance. But resistance without vision is not enough.

Jeff Sessions, it should be said, does have a clear, easily articulated vision of what justice should look like in this country. We need a clear, easily articulated response, beyond “no.”

It’s 2018. It’s time for a comprehensive vision of how the criminal justice system would operate, if it were intentional, morally defensible, responsive to research, and responsive as well to the circumstances that lead to crime. I propose three fundamental objectives that the system should have:

  1. The system must serve the purpose of making felons less likely to repeat their offenses. It does not currently.
  2. The system must serve the purpose of making other people connected to the incarcerated individual less likely to break the law for the first time. It currently does the opposite.
  3. The system should be based on empirical evidence, rather than political salience.


The fact that sentencing is up to someone’s whim, irrespective of any sort of science, is medieval. Where is our Laffer Curve of time served? Where are the studies that show the progressive decrease in effectiveness of prison, as you pile on the years? How do we know how much of a difference in impact there is between serving a year and serving twenty?

In a better system, a sentence would be exactly as long as the time needed to keep the convict and his community safe, while he is rehabilitated. And not a day longer, or shorter. He would be assessed by clinicians, who would determine a course of correction, involving any medical and social interventions that may have led to the offending event. Once we know why a crime was committed, we can address the circumstances at the root.

This is not new. When I have a headache, I don’t subject myself to brain surgery just to be on the safe side, without first gaining an understanding of the actual root of the problem. If I’m making a decision that can either rehabilitate me or destroy the rest of my life, I like to indulge in a clinical evaluation first.

Prison: Incentivizing for recovery

A correctional facility and its leadership should be compensated according to their success in reducing recidivism, not in how full they’re able to keep the prison. Recidivism metrics must of course be calibrated against the number of people released. The release of each inmate must be determined by a panel independent of the facility’s leadership, to mitigate against a potential tendency on the part of an incentivized leadership to constrict the number of people released.

Incentivizing leadership is the first domino in a much bigger, and vastly more important task: that of changing the culture of those who run our prisons. Leaders should operate as innovators and disruptors. Those who come into direct contact with inmates should operate as social workers. Our communities need fewer strongmen, and more professionals that approach their work with the urgency of activists, entrenched in a daily protest against the incarceration cycle devastating their neighborhoods.

Forward-thinking leaders will innovate. They may, for example, call for an Individualized Service Plan for each inmate, supported and executed by a coalition of community organizations, that take into account the entire individual, according to his unique needs.

They may convene workforce development plans and trainings that actually lead to jobs. Pipelines must be built from prison to employment that are diverse in their disciplines, and can service people with different skill sets and interests. They must be operated by workforce coalitions that include training programs, schools, and employers. These consortia should be compensated by the Commonwealth according to their success. This is an easy investment for the Commonwealth to make: Rehabilitating someone costs far less than keeping him incarcerated.

And regarding those workforce development initiatives: It’s not enough to generate forklift operators and construction workers. Let’s make sure the doors stay open to what we’ve traditionally called “higher-skilled” jobs as well. If we seriously believe the mantra that genius is everywhere and opportunity is not, than we have a responsibility to create opportunity for the geniuses behind bars. They do exist. I’ve met them.

This shift is already well on its way, to a certain extent. There are consortia of organizations that provide these types of supports. What I propose is that they be rewarded with the funding they need to continue being successful. Current efforts at rehabilitation are under-resourced, and disconnected. This is because they are funded as charities, rather than as a strategic investment with an expectation of financial return. But the reduction of recidivism has a direct impact on the economy, and should be treated as such.

Probation: Incentivizing for employment

Every morning, one of our alumni at Resilient Coders dials a phone number before he goes into work as a software engineer. He connects with an automated system that tells him whether or not he has to get tested that day. If he does, he has to skip work that morning to do so. Early on in his employment, nervous about confessing to his boss that he’s getting drug tested as a condition of his probation, he didn’t say anything. He just showed up to work hours late, and made up excuses. This almost cost him his job.

Another alum was arrested, on his way to work, because someone with whom he had interpersonal conflict called in a false account of aggravated assault. It’s not uncommon to see the law used as a tool for personal retribution. Because this individual was on probation, the police had to take the accusation seriously, even in the complete absence of evidence. This young man spent three days in jail, without a way to communicate with his employer. He also almost lost his job; especially given that his employer had been unaware of his record. This is a hell of a way to be “outed” as a felon to your colleagues.

Probation should serve to support the funnel of rehabilitation into stable employment. It does not. It’s often an obstacle to employment, with random drug testing, and appointments with probation officers, that take people out of work. This presents probationers with an uneasy choice between admitting their record to an employer who may not be aware of it, or making up excuses for why they’re frequently absent. Both jeopardize their ability to hold the job.

In a system in which probation actually serves to support the transition back into a stable life, tests and appointments are scheduled in such a way as to not interfere with professional obligations. Testing should be done outside of working hours, and “working hours” must be set by the probationer. Meetings should be done remotely. There’s no reason why they couldn’t take place over Skype. I’ve heard probation officers insist that they meet in person, in order to know where a probationer is at that moment. This is nonsense. That can be done with a smartphone. The officer could, during a Skype call, use “Find a Friend” to place the probationer, and dial his phone number and watch the probationer pick up the phone placing him at a given lat/long. Also, a hundred other solutions. We have the technology.

Rethinking school policing

The reason for which we have a heightened police presence in our urban schools is unclear. If it’s to keep students safe from shootings, they should be in suburban schools, where most school shootings take place. The same could be said for the buying and selling of drugs. That’s also a suburban problem. I have to imagine that this is meant to prevent gang-related gun violence. Does it?

The cost of this added measure of security at schools is a deep corrosion of trust. In an essay entitled “Boys to Men: The Role of Policing in the Socialization of Black Boys,” Kristin Henning describes the escalating series of interactions between young men of color and law enforcement, which serves as the foundation on which teens begin to build their understanding of law enforcement. Whatever the incremental gains in safety, they are made at the expense of the community’s trust. And successful law enforcement becomes much more difficult without the community’s trust. In-school policing is a great example of forfeiting the war, to win the battle.

This is the Afghanistan in our own city. We know that an occupying force without a clear objective just leads to resentment, which will invariably manifest as some sort of act of rebellion. There’s no better recruitment tool for an insurgency than an occupation that we all know is pointless, but engage in anyway. We eventually figured this out in Afghanistan, pivoting towards a “Hearts and Minds” approach, trying to reclaim some legitimacy and purpose for the occupation. We would do well to adopt a similar mentality to the occupation of our urban schools, if they need to be occupied at all. This would involve hiring for this role, since it has unique qualifications. This person should be someone with experience with, and a passion for, young people. This person must be unarmed, and out of uniform.

What Will It Take?

We need our leadership to present a comprehensive and systemic vision of what criminal justice should look like, beyond districts and states. Legislation is not the solution; it’s one brick, which we’re currently throwing on top of a broken foundation.

It’s time for a new foundation altogether.

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