“Reconceptualizing the Role of Violence in our Criminal Justice System” – Program Recap and Takeaways

By Michael Bloch, Member, Criminal Justice Operations Committee and Mass Incarceration Task Force

A video recording of this program is available here: 

It is no secret that the incarceration rate in the United States is the highest in the world. Recent reforms in New York have attempted to address the scourge of mass incarceration by enacting policies that tend to reduce the jail and prison population. By and large, however, the reforms – both enacted and contemplated – apply strictly to what legislators characterize as “non-violent” offenses, often carving out any relief for those accused and convicted of “violent” crimes based on the broad notion of “public safety” concerns. The advent of COVID-19, which is racing through New York jails and prisons, has brought the issue into even sharper focus. Generally speaking, whatever COVID-19 related relief has been offered to “at risk” incarcerated people has been unavailable to those incarcerated for “violent” crimes. But the elephant in the room is that there is little hope of putting a genuine dent in mass incarceration without including “violent” offenders in any decarceration efforts, COVID-19 related or not.

On May 12, 2020, in a panel discussion hosted by the New York City Bar Association’s Mass Incarceration Task Force, chaired by Sean Hecker, leading experts in the criminal justice community discussed the elephant head on. There was agreement amongst the panelists that our societal response to violent crime fails to serve the interests of the communities where violent crime occurs, including the interests of survivors themselves. The current response is, on the whole, knee-jerk, arbitrary, inhumane and overly punitive. If we strive for a system that actually reduces violent crime, and hope to meaningfully address mass incarceration, our approach to violent crime needs radical transformation.

Jonathan Rapping, the Founder and President of Gideon’s Promise, moderated the discussion and led things off by describing the criminal justice system as one with an addiction to punishment, often crippling, particularly when considering consequences for those who commit violence.  Kenton Kirby, the Director of Practice at the Center for Court Innovation and a social worker with years of experiencing counseling those in the system who have been impacted by violence, described the psychological forces that lead people to commit violence. Mr. Kirby noted that violence is often a reaction to trauma, and specifically arises out of feelings of being unsafe, as opposed to some sort of moral failing, as it is often treated by the system. Danielle Sered, who founded and leads Common Justice, the first alternative-to-incarceration and victim-service program in the United States that focuses on violent felonies in the adult courts, explained that those fundamental misunderstandings as to the root causes of violence are  precisely why the system offers such ill-fitting solutions – namely, the reflexive reaction to incarcerate for excessive lengths of time. Ms. Sered noted that the individual drivers of violence – shame, isolation, exposure to violence, and an inability to meet one’s economic needs – are precisely the same forces that people are exposed to in the prison setting. Treating violent crime with prolonged incarceration therefore is like “showing up to a house fire with a hose full of gasoline.” As a system, we are either being fundamentally dishonest about the root causes of violence, or we have not studied it systematically with any real integrity.

New York University Law Professor Rachel Barkow expounded on these ideas, describing the sheer arbitrariness with which political actors assign sentence lengths to certain crimes. Professor Barkow, who spent nearly six years on the United States Sentencing Commission, argued there is simply no empirical basis to the manner in which sentence lengths are prescribed, which hinders our ability to have a rational discussion about whether punishments fit the crimes they are intended to address. Sentences typically do not address critical empirical realities, such as the fact that people tend to “age out” of committing violent crimes. Instead, we opt for “one-size-fits-all” sentencing that in reality fits virtually none. Worse, there is little attention paid to what actually happens to people while they are incarcerated. Generally speaking, prisons offer inadequate and insufficient programming and services, such as drug and mental health treatment, which leaves incarcerated people ill-equipped for the difficult transition back into the community at the end of their sentence. While the reality is that 95% of people will ultimately leave prison and re-enter the community, we do virtually nothing to aid the re-entry process. It is just more gasoline on the fire.

Ms. Sered presented an array of compelling statistics that thoroughly debunked any prevailing notion that heavy sentences are justified because that is what victims of violent crime want. Fewer than half of victims of violent crime notify the police. Another 25% do not pursue the case beyond the grand jury stage. According to Ms. Sered, of the relatively small group that pursues prosecution beyond that point, 90% of them, if given the choice, opt for the restorative process presented by Common Justice as an alternative to incarceration. The problem for both victims of crime and prosecutors alike is that they are rarely presented with an option to deal with a given violent crime that does not involve incarceration. So, we subscribe to a fallacy that incarceration is what people impacted by violence want.

Professor Barkow took a moment to evaluate Governor Cuomo’s response to the pandemic in prisons. As an initial matter, Governor Cuomo’s approach seems to mirror the same line-drawing that plagues the system more generally. Only “non-violent” offenders within two to three months of being released are even eligible for relief from the death traps our prisons have become, and Governor Cuomo has yet to use his clemency powers to save people from COVID-infested prisons. Governor Cuomo’s approach seems emblematic of a larger problem. Although logic, empirics and reason tend to favor a more tailored and less punitive approach to violent crime, politics does not. Judges and politicians tend to operate in fear of the so-called “New York Post effect” – that a single act of future crime by someone shown compassion will wind up in the news media and play an outsized role at the ballot box.

The panelists then discussed possible next steps. Mr. Rapping offered that what is needed is not just better policy but a larger cultural shift. In his two decades of practice working with clients and systems across the country, what he has identified as the heart of the problem is a narrative that we have embraced as a society that certain lives simply do not matter as much as others. This narrative finds cover under an expansive “public safety” umbrella. It is that disturbing reality that permits criminal justice professionals to tolerate allowing certain people to languish in jails, even during a deadly pandemic. What we need is for more people – particularly those in power – to have real contact with people actually impacted by the destruction that incarceration can inflict on individuals, families and communities. Along those lines, the discussion wrapped up with some policy prescriptions and glimmers of hope. Mr. Kenton noted that, little by little, he is noticing people more willing to look beyond someone’s worst moment. He suggests that we finally acknowledge that incarceration itself imposes its own violence, and that we screen and treat individuals reentering society for the trauma they have suffered. Professor Barkow noted the perverse but powerful implications of the fact that we have incarcerated so many: that there are now millions of people with first-hand experience of the trauma perpetrated on people by the criminal justice system. Because proximity breeds empathy, mass incarceration may well have planted the “seeds of its own demise.” Professor Barkow recommends more oversight of prosecutors, who should view prison as a last – not first – resort, and prisons, which should be incentivized to provide programming that leads incarcerated individuals to better outcomes upon reentry. Ms. Sered finds the recent elections of reform-minded prosecutors as a reason to be hopeful. More specifically, the grassroots movements that underpin some of those electoral victories should mean that prosecutorial policies enacted in those communities will have to actually account for the true interests of both survivors of violent crime as well as those accused of it.

This article represents the observations and views of the webinar panelists and the author, and not necessarily the City Bar.