How Should the US Presidential Candidates Think about Criminal Justice Reform?

Police officer wearing protective mask stands in front of a criminal justice reform sign in Washington, DC. Photo by Stephani Reynolds/BloombergPolice officer wearing protective mask stands in front of a criminal justice reform sign in Washington, DC. Photo by Stephani Reynolds/Bloomberg
Harvard Kennedy School
September 23, 2020

This year, the high-profile police killings of George Floyd and Breonna Taylor have put criminal justice reform and systemic racism in a bright spotlight on the national stage. How should the U.S. presidential candidates—and how should voters—think about police reform? What should the next administration do to create a society that is fairer and more just?

Faculty members affiliated with the Program in Criminal Justice Policy and Management at the Malcolm Wiener Center for Social Policy share their ideas—from decarceration to rethinking juvenile justice to changing our policies toward immigrants. Read their thoughts below. 

We can safely free one million prisoners now. We should do so.

Sandra Susan Smith
Daniel and Florence Guggenheim Professor of Criminal Justice and Faculty Director of the Program in Criminal Justice Policy and Management, Harvard Kennedy School; Carol K. Pforzheimer Professor at the Radcliffe Institute for Advanced Study

Almost 15 years ago, a bipartisan effort began to decarcerate America. Declines since have been modest at best, however, with some suggesting that it might take another 75 years to halve the number of people held in America’s jails, prisons, and detention centers.

The early stages of the coronavirus pandemic presented the United States with a unique opportunity to significantly quicken the pace of decarceration. Indeed, across the globe, hundreds of thousands have been released in an effort to slow the virus’s spread. More than six months into the pandemic, however, the United States, a country housing 25 percent of the world’s prisoners, has released only a tiny fraction. 

Still, debates about decarceration in the age of COVID-19 have been productive. It has now become much clearer that some subsets among the incarcerated can be safely released with no real threat to public safety. Most notable are the roughly 470,000 pretrial detainees who sit in jail each day awaiting case adjudication. The majority are there because they are simply too poor to make bail, not because they are a threat to safety or flight risks. The other reasonable categories for release include individuals convicted of low-risk, low-level offenses; the elderly and infirm; and those nearing the end of their sentences.

Importantly, if COVID-19 could cause us to seriously reconsider for whom imprisonment is most appropriate, it stands to reason that these same criteria should inform decisions about the appropriateness of incarceration in general. As most other countries across the globe have shown, there are other reasonable approaches to punishment besides imprisonment that we could and should adopt. Thus, state and federal authorities should act affirmatively to set free most prisoners in these categories. By doing so, the United States could cut by half the 2.3 million people currently locked up without sacrificing public safety.

To keep incarceration rates low, on the front end of criminal case processing, pretrial detention should be reserved only for those deemed most dangerous and those who represent a flight risk; reasonable alternatives to incarceration should be imposed on low-risk, low-level offenders; and for those who are sentenced to jail or prison, sentencing lengths should be reduced significantly. On its back end, greater efforts need to be made to increase rates of parole and we should eliminate the reimprisonment that occurs because of technical violations.

Not only would these important steps help to unburden an overwhelmed penal system, they would also enable a deeply unfair and unjust system to better act in accordance with stated principles of justice—proportionality, parsimony, citizenship, and equity. Further, the benefits to communities typically affected, and in some cases devastated, by mass incarceration (low-income communities of color) would be huge—intact families, thriving children, stronger ties to the labor market, and other mainstream institutions.

Neither candidate for president has offered a serious plan for decarcerating the federal system or for incentivizing states to decarcerate. In this moment of transformational possibilities, both candidates need to think, and act, big. 

We need a new model for assessing the effectiveness of policing

Desmond Ang
Assistant Professor of Public Policy, Harvard Kennedy School

Joscha Legewie
John L. Loeb Associate Professor of the Social Sciences, Harvard University

Over the past 25 years, the reduction of violent crime in nearly every city in the United States has given political leaders something to celebrate. Investments in policing are widely credited for part of this historic decline and the revitalization of urban neighborhoods, especially in major metropolitan centers like New York City and Los Angeles.

However, new research powerfully demonstrates the hidden costs of controversial policing tactics like stop-and-frisk and officer use of force. Professor Joscha Legewie’s study in the American Sociological Review found that while Operation Impact—a policing program in New York City that saturated selected high crime areas with additional police officers—was successful in reducing violent crime, the policing program significantly reduced test scores for African American boys aged 13 to 15 years old. Other groups, however, were largely unaffected by the policing program. Similarly, research by Professor Desmond Ang in the Quarterly Journal of Economics shows that officer-involved killings in Los Angeles, particularly killings of unarmed individuals, negatively affect the educational and psychological well-being of nearby Black and Hispanic high school students. The study’s findings suggest that each officer-involved killing caused, on average, three students of color to drop out of school.

This research is part of growing efforts among social scientists to assess the social consequences and costs of law enforcement activity. A study by Andrew Bacher-Hicks and Elijah de la Campa similarly links stop-and-frisk to reduced graduation rates for minority youth but also documents potential benefits for white and Asian students. Amanda Geller and colleagues find that stop-and-frisk may increase stress and even trigger PTSD-like responses in young people, while work by Alexander Tsai, Atheendar Venkataramani, and others finds similar effects of police killings on Black male adults. Finally, studies by Naomi Sugie and Kristin Turney, as well as Abigail Sewell and colleagues, link other forms of criminal justice contact—from arrests to incarcerations—to mental health.

These findings highlight the hidden costs of aggressive policing programs, particularly for communities of color. In addition to the mental health and educational ramifications, it is possible that programs like New York City’s Operation Impact could have unintended consequences on crime as well. While investments in policing may reduce crime in the short term, research shows that reductions in schooling may increase rates of arrests and incarcerations in the long run. The implications for policy are profound and urge a new model for assessing the effectiveness of policing: a model that not only tracks changes in crime but also assesses the social costs and consequences of policing programs; a model that keeps our kids safe while allowing them to reach their fullest potential.

Rein in the police’s structural power

Yanilda María González
Assistant Professor of Public Policy, Harvard Kennedy School

Police reform is once again atop the public agenda in the United States, due to pressure from sustained nationwide protests and the electoral incentives of political leaders waging a close presidential contest. My forthcoming book on police reform in Latin America, Authoritarian Police in Democracy: Contested Security in Latin America, demonstrates that these conditions—robust political competition and the convergence of societal preferences in the form of a scandal—increase the likelihood of structural police reform. But my research also underscores the need to pay particular attention to one aspect of police forces that enable them to exert considerable pressure to shape the type of reform that emerges, as well as to roll back hard-fought reforms once enacted: the police’s structural power.

Because police ostensibly provide a service that is essential for the functioning of society, police serve as an essential instrument of political power. If the police force were to withdraw its service—whether through work slowdowns, strikes, or standing idle in the face of violence—it could prove to be politically catastrophic for elected leaders. Conversely, police forces provide a service that can be distributed in politically beneficial ways. Police thus hold considerable leverage to constrain policy agendas and extract concessions from politicians. In the cases I studied in Argentina, Brazil, and Colombia, police forces leveraged political relationships to undo comprehensive reform legislation, mounted nationwide pressure campaigns to ensure the passage of beneficial constitutional amendments (and kill disadvantageous ones), and exercised selective protection of politicians’ favored constituents and repression of opponents in exchange for greater autonomy.

In the United States, the structural power wielded by police forces is no less formidable. Police reform in the American context must therefore contend with the police’s structural power. Policymakers should construct a firewall between police and politics, eliminating or severely limiting police linkages to and leverage over elected officials—whether it’s campaign donations and electoral endorsement by police unions or informal ties, such as President Trump’s pledge to send law enforcement and sheriffs to polling places. They should also ensure public input, transparency, and constraints on police union contracts, which are often discussed as though they are inevitable obstacles to reform, but in fact emerge from opaque processes in which only police union leaders and politicians negotiate far from the public eye. Finally, and most crucially, policymakers should constrain the ever-expanding police role in administrative and public life—from schools and mental health to the collection of fines and fees essential to municipal budgets. The greater the police’s role in society and government, the greater their leverage to extract concessions and constrain policy agendas, leading to reforms in which the overarching priority is ensuring the police’s permission, rather than improving the public good or protecting the rights of affected communities.

Transformational juvenile justice reform needed

Lynette N. Tannis
Adjunct Lecturer on Education, Harvard Graduate School of Education

Rarely do we hear the word children or the term incarcerated youth in criminal justice reform conversations. The national pleas to end mass incarceration, improve conditions within prisons, offer effective rehabilitative programming, and provide more efficient reentry supports are all important and necessary reforms needed; however, we must not forget our confined children in these conversations, who are arguably our most disenfranchised. While some children who are in adult prisons may benefit from purported reform efforts, we need transformational changes within our juvenile facilities and programs, many of which eerily resemble the very same prisons that house primarily adults.

The ACLU and the Annie E. Casey Foundation, among other organizations, have been instrumental in working with states to decrease the numbers of children confined each year. Community-based diversion programs and an emphasis on restorative practices have helped to significantly decrease the number of children who are incarcerated. However, we still incarcerate more than 100,000 children each year, and these children continue to be disproportionately children of color, indigenous children, children of poverty, children with special needs, including mental health needs, children negatively impacted by complex trauma, and children who identify as LGBTQ or gender nonconforming. What is also concerning is what happens with our nation’s imprisoned migrant children. Transformational reform is needed.

As juvenile facilities have also felt the impacts of COVID-19, including a lack of educational programming and an increased use of solitary confinement—what is often referred to as isolation or security rooms—parents and advocates have pushed for early release dates or no incarceration altogether. Fortunately, in some states, there has been success.

If we can eliminate children being placed in a facility or reduce their confinement time during a pandemic, it is incumbent upon us to question this practice currently and beyond COVID-19. For those youth who remain confined, we must continuously make sure they receive high-quality educational, therapeutic, and behavioral programming.

Our first juvenile justice court was established in 1899, recognizing the vast difference between children and adults. However, over the years, our children’s carceral spaces have mirrored adult settings; and yet children are often left out of the national reform deliberations. Now is the time to make sweeping transformational changes for our children and our society.

Decriminalizing migration to solve a humanitarian crisis

Philip L. Torrey
Director, Crimmigration Clinic, Harvard Law School

Any meaningful criminal justice reform championed by our next president should include the abolition of federal immigration-related offenses. Last year, Democratic presidential candidate Julián Castro called for the repeal of 8 U.S.C § 1325—the federal statute that makes unlawfully entering the United States a misdemeanor. Since then, little attention has been paid to the federal laws that criminalize migration, and the costly enforcement of those laws from both a humanitarian and financial perspective.

In the summer of 2018, hundreds of migrant children were separated from their parents at the southwest border of the United States because of the Trump administration’s “zero-tolerance” policy. Family separation as a deterrent to would-be border-crossers was the explicit goal of that policy. But it was the criminal law system that effected the policy’s directive. Specifically, the separation of families occurred when a child’s parent was prosecuted for unlawfully entering the United States pursuant to laws like 8 U.S.C. § 1325. Despite the administration’s decision to rescind the policy after public outcry, some children remain indefinitely separated from their parents.

Not only are federal laws that criminalize migration at the center of the humanitarian crisis at the southwest border, but a significant amount of resources has been dedicated to enforcing those laws. Recent Department of Justice statistics demonstrate that illegal reentry—a federal felony—is one of the most commonly prosecuted federal crimes in the country. In 2016, a majority of all new federal criminal prosecutions were immigration related. Although those numbers have since dropped, immigration-related criminal charges continue to dominate federal district court dockets. In July 2020 alone, the Department of Justice filed 1,063 new immigration-related criminal charges. Taxpayer dollars used to prosecute and detain individuals could be better spent on programs that instead improve the efficiency and fairness of immigration adjudications.

Despite the problems posed by immigration-related criminal laws, neither presidential candidate seems poised to embrace their repeal. Democratic presidential candidate Joe Biden recently formed a task force to help him attract supporters of Senator Bernie Sanders by inching left on some of his immigration policies. But that group has not recommended that Biden call for a full repeal. Conversely, President Trump has made clear that leveraging the criminal law system to advance his immigration agenda is a central tenet of his platform. Both candidates, however, would be wise to embrace the decriminalization of migration because it is both morally imperative and makes good fiscal sense.

Now is not the time to tinker with reform

Kaia Stern
Practitioner in Residence, Law, Education, and Justice, Radcliffe Institute for Advanced Study; Lecturer on Education, Harvard Graduate School of Education

We often claim that the system of criminal justice is broken and in need of reform, implying that, at its inception, the system was whole and just. The criminal justice system is not broken; it is brutally intact—part of a long-standing and well-oiled machine, born of a slave economy and integral to what James Lawson calls “plantation capitalism.” Now is not the time to tinker with reform. We need radical economic, legislative, and philosophical restructuring. Let us cease to imagine that the person we punish is an evil other who deserves our righteous hatred. Until then, we will continue to tolerate torture in the name of justice.

Any policy change has to reckon with the legacy that some people are considered less than human. Prisons operate as if the people in custody are state property, without basic human rights. That belief is written across millions of backs and is indelible on the parchment of our 13th Amendment. Anyone who has spent time in a jail or prison knows that human connection is generally contraband. Forbidden and inevitable, it is a smuggled good. Sharing is punished as extortion. Officers get fired for smiling too much. And the way we punish is not just harming the people we condemn to jail/prison. Though unpopular to note, the massive labor force in jails and prisons (which includes officers, administrators, health care professionals, and subcontractors) across our nation comes from the same socioeconomic communities, if not the same families, as the people who are locked up. Many officers, especially near cities, are Black and Brown. They are not the power elite; they are trying to put food on the table.

To safely and effectively wean from incarceration, we have much work to do. Invest in communities that are systematically denied basic resources. Attend to violence, addiction, and poverty as a public health crisis. Eliminate mandatory drug sentences and stop the flow of people locked in jails and prisons. Enable statewide initiatives to increase access to vocational and educational programs for incarcerated people. Reduce the length of probation and parole, eliminate re-imprisonment for technical parole violations, and eradicate the use of fines and fees as ongoing punishment. Expand social services. Create workforce development for the people who are employed in our punishment sector. And, as critical thinker David J. Harris reminds us—stop coupling the words “criminal” and “justice.”

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