If All You Have Is A Hammer, Everything Looks Like A Nail

Hammer and nails by Hans Godo Frabel

Hammer and nails by Hans Godo Frabel

We asked the city for help, and we got a raid.
—Taylonn Murphy

We somehow understand punishment, but then we put a period after that word. Nothing follows. Nothing about rehabilitation, redemption, second chances.
Leon Botstein, President, Bard College

This is not my typical reading material, but recently, three noteworthy articles relating to the subject of criminal justice came to my attention in quick succession. The first, in The Atlantic, by 2015 MacArthur Genius award winner Ta-Nehisi Coates, is entitled “The Black Family in the Age of Mass Incarceration.”  Using as his springboard Daniel Moynihan’s controversial 1965 report, “The Negro Family: The Case for National Action,” Coates, with clarity, intelligence, and nuanced marshaling of evidence, traces the plight of the black family in the United States from its origins in slavery to the present. In so doing, he sets current incarceration rates in the United States in bold relief:

Through the middle of the 20th century, America’s imprisonment rate hovered at about 110 people per 100,000. Presently . . . . America’s closest to-scale competitor is Russia—and with an autocratic Vladimir Putin locking up about 450 people per 100,000, compared with our 700 or so, it isn’t much of a competition. China has about four times America’s population, but American jails and prisons hold half a million more people. “In short,” an authoritative report issued last year by the National Research Council concluded, “the current U.S. rate of incarceration is unprecedented by both historical and comparative standards.”

Coates carefully teases apart the evidence to examine the validity of commonly held assumptions. For example, he notes that, while a rise in crime could account for the rising rate of imprisonment, “the relationship between crime and incarceration is more discordant than it appears. . . . The incarceration rate rose independent of crime—but not of criminal-justice policy.”

Focusing his attention on the black family, Coates hearkens back to concerns that led Moynihan to write his 1965 report:

Even in the booming ’90s, when nearly every American demographic group improved its economic position, black men were left out. . . . These consequences for black men have radiated out to their families. By 2000, more than 1 million black children had a father in jail or prison—and roughly half of those fathers were living in the same household as their kids when they were locked up. Paternal incarceration is associated with behavior problems and delinquency, especially among boys.

Coates goes on to note:

A series of risk factors—mental illness, illiteracy, drug addiction, poverty—increases one’s chances of ending up in the ranks of the incarcerated. “Roughly half of today’s prison inmates are functionally illiterate,” Robert Perkinson, an associate professor of American studies at the University of Hawaii at Mānoa, has noted. “Four out of five criminal defendants qualify as indigent before the courts.” Sixty-eight percent of jail inmates were struggling with substance dependence or abuse in 2002.

“One can imagine, Coates comments, “a separate world where the state would see these maladies through the lens of government education or public-health programs. Instead it has decided to see them through the lens of criminal justice.”

A second article, “A Daughter’s Death: The father of a star high-school athlete confronts New York City’s patterns of violence,” offers a personal account that brings the impact of Coates’s analysis up close. The article recounts the story of Taylonn Murphy, whose daughter Tayshana, a fine young athlete affectionately known as Chicken, was killed as a bystander-victim of gang violence in the Grant housing project where the family lived. (Jennifer Gonnerman, The New Yorker, October 15)

In sentencing one of the defendants, Judge Thomas Farber “spoke about the Grant-Manhattanville feud.”

He pointed out that the young men from the two projects had much in common: “They were the same young men. They live in the same geographical area.” The differences between them, he said, “don’t exist except in the minds of the people who are fighting. So they are fighting over nothing, really nothing.” But the feud had given them a “feeling of purpose,” and “unless we are able to impart meaning into our children’s lives, then this drama is going to keep playing again and again and again, and people are still going to die.”

Taylonn Murphy, out of the pain of his daughter’s death, ultimately emerged as a community leader. Working with community activist Derrick Haynes,

To try to help these young people, [they] organized a jobs seminar with a representative from the community-affairs office of Columbia University; attempted to broker a truce between the projects; and spoke to everyone they could find who might be able to help them open a crisis center . . . .

In 2014, in the midst of Murphy’s and Haynes’s efforts, the police conducted a raid on the Grant and Manhattanville Houses that resulted in over 100 indictments of “young men, all of whom were allegedly members of the three neighborhood crews.” The Manhattan District Attorney described the case as the “largest indicted gang case in NYC history.”

Haynes and Murphy agreed that something needed to be done about the violence, but they did not think that this was the right solution. Many of the young men they had been trying to mentor were now headed to Rikers Island. . . . Murphy summed up their frustration by saying, “We asked the city for help, and we got a raid.” Later, he added, “The money spent on this indictment, the money spent on this military-style raid, the money spent on housing these young individuals, the money spent on this prosecution—if you took two per cent or ten per cent of that money, we might be able to have enough money to deal with this whole youth problem.”

K. Babe Howell, an Associate Professor at CUNY School of Law, whose area of study “focuses on the intersection of the criminal justice system and race,” offered insight about the D.A.’s approach.

[Howell] sees a connection between the low crime rate and the large-scale indictment. With the decline in crime, she said, prosecutors in the D.A.’s office have less to do, and “that leaves a lot of brainpower to think and be creative. But it’s one of those situations: when you’re a hammer, everything looks like a nail. When you’re a prosecutor,” the question becomes, “How do we prosecute these crews? Instead of, How do we intervene early and think about diversion?”

One cog in the wheel of the criminal justice system is the grand jury. It’s an enormous apparatus to maintain, not only in terms of the substantial commitment of time demanded of grand jurors (in Dutchess County, New York, groups of 23 grand jurors sit for eight-week terms minimum), but also in the extensive governmental personnel and resources required to manage the juries and present cases for consideration.

England, from which the United States inherited the grand jury system, abolished it in 1933.

“It goes back centuries here,” explains London-based legal writer Joshua Rozenberg. “In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They’re people who actually knew the offenders, as we’d call them today, and could perhaps bring them to justice.”

By the 16th century, that morphed into the system we’d now recognize as a grand jury: A group of people listening to a prosecutor’s evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. “We now send cases that are serious enough straight to jury trial,” Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury. [PRI Interview]

Press accounts tend to be facile in assessing the question. I don’t, for example, agree with Sol Wachtler’s oft-quoted statement, mentioned in the PRI article, “that a district attorney could get a grand jury to ‘indict a ham sandwich.’” It is the case, however, that failures to indict are rare. A Bureau of Justice Statistics report for the period from October 1, 2009, to September 30, 2010 indicates that

Over that time period, over 193,000 federal offenses were investigated, about 16 percent of which were declined for prosecution. That leaves just over 162,300 offenses that the government tried to prosecute. And the grand jury decided against doing so 11 times, finding no true bill or a lack of evidence to do so. [citation]

It’s pertinent to ask, therefore, whether the considerable time and resources involved in maintaining the grand jury apparatus are warranted. An article in Cornell Law Review, Volume 80, Issue 2, January 1995, by Andrew D. Leipold, currently the Edwin M. Adams Professor and Director, Program in Criminal Law and Procedure, at the University of Illinois, offers a carefully researched and thoughtfully articulated case for “Why Grand Juries Do Not (and Cannot) Protect the Accused.”

Despite the age and vigor of the controversy, at least two important points remain underdeveloped with respect to the screening function. First, it is still surprisingly unclear what grand juries are supposed to accomplish, and how successful they are in achieving those goals. There is general agreement that grand juries should derail “unfair” or “unwarranted” prosecutions, but there is little discussion about which cases fit those descriptions. Second, there has been remarkably little attention paid to the ultimate decisionmakers—the jurors themselves.

. . . .

This Article focuses on these two points and concludes that, as currently constructed, grand juries not only do not, but cannot, protect the accused from unfounded charges.

. . . .

The only issue jurors are asked to decide is whether the prosecutor’s evidence is legally sufficient to justify an indictment . . . . Rather than being asked to find facts and apply those facts to the law, the jurors are presented with a single set of facts, instructed on the law by the prosecutor, and asked to decide whether those undisputed facts are sufficient to satisfy a specific legal test—the probable cause standard. This Article concludes that assigning this role to a jury—a role that is nearly unprecedented in American law, ensures that even reasonable, independent-minded jurors will defer to the prosecutor’s judgment that an indictment should issue.

Leipold notes that more than half the states have abolished the grand jury (beginning with Michigan in 1859), so there are time-tested approaches from which New York and other states might choose. Resources saved from maintaining the grand jury apparatus could then be redirected toward more socially useful ends, like the Bard Prison Initiative and the Victory Bus Project. If we look beyond the hammer, it is possible to envision more than nails.


Postscript: While in the midst of writing this post, I learned that the debaters of the Bard Debate Union at the Eastern New York Correctional Facility won their debate against Harvard University’s team. David Register, faculty fellow and the director of debate for the Bard Prison Initiative, had this to say about the win:

Our debaters were honored that members of Harvard’s team were willing to engage them in competition, and the contributions and character of these Harvard debaters should be celebrated. . . .

It is critically important to remember that our debaters are students first and debaters second – and prisoners a distant third. By the time I encounter BPI students, they have been trained by an incredibly gifted group of faculty members, so I deal with highly literate and intellectually curious students.

One of the primary goals of the Bard Debate Union at Eastern is to provide a robust civic education, in which our students learn how to engage in their own governance. Many of our debaters openly express the desire to someday make positive contributions to society. I have no doubt that they will.

Second Postscript: Since writing this post, additional articles have come to my attention that shed light, rather than heat, on the issues at hand. They are indicated below and linked for reference:

Reconsidering Incarceration:New Directions for Reducing CrimeVera Institute of Justice (2007)

This report “seeks to make sense of the current body of research literature
on the relationship between crime and incarceration.” From the Executive Summary:

Current research on the relationship between incarceration and crime provides confusing and even contradictory guidance for policymakers. The most sophisticated analyses generally agree that increased incarceration rates have some effect on reducing crime, but the scope of that impact is limited: a 10 percent increase in incarceration is associated with a 2 to 4 percent drop in crime. Moreover, analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve.

These outcomes raise the question of whether or not further increases in incarceration offer the most effective and efficient strategy for combating crime. Additional research examined in this report reveals several other variables that have also been shown to have a relationship with lower crime rates. An increase in the number of police per capita, a reduction in unemployment, and increases in real wage rates and education have all been shown to be associated with lower rates of crime.

Priority IssuesLaw Enforcement Leaders to Reduce Crime and Incarceration

One of the four issues identified by Law Enforcement Leaders is increasing alternatives to arrest and prosecution, especially mental health and drug treatment. From the recommendation:

Law Enforcement Leaders supports policy and practice changes within law enforcement agencies that offer alternatives to arrest and prosecution. We urge police departments and prosecutors’ offices to adopt policies that prioritize mental health and drug treatment instead of arrests and prosecution, when law enforcement has the discretion to choose this alternative and it would not harm public safety. We also support training of law enforcement to recognize individuals in need of these alternatives.

Law Enforcement Leaders urges federal, state, and local law enforcement agencies to provide their officers and prosecutors with alternatives to address mental illness and addiction outside of the justice system.

Listening List

Bard Prison Initiative Commencement

PBS Report on the Bard Prison Initiative (Part 1)

PBS Report on the Bard Prison Initiative (Part 2)


Credits: The image at the head of the post may be found here. The quotations in the post may be found at the sources linked. The five-minute PRI interview about the grand jury system is well worth a listen and may be found here.

10 thoughts on “If All You Have Is A Hammer, Everything Looks Like A Nail

  1. larrymuffin

    Incarceration numbers in the USA are frightening and not useful to society in the long run, harmony is destroyed and it comes down to a system of vengeance and anger instead of Justice.
    We unfortunately in Canada with the current Harper regime following this pattern of trying to incarcerate forever people out of a sense of vengeance, petty behaviour and small minds. Hopefully this can be reverse on 19 Oct Election day.

    1. Susan Scheid Post author

      Larry: I have long looked to our neighbor to the north for sane humanity, and the past several years have been discouraging. I hope along with you for a good result October 19.

  2. David N

    The statistics are terrifying, and enough to thrust forward a terrible malaise in the justice system as well as in American society at large. So much potential and so much energy going to waste in every way. And all that money misdirected – I was thinking much of the same when Cameron was going at ringfence security like crazy without addressing the refugee crisis (for which his government has been rightly condemned by legal figures here). Who’d touch American justice for a moment without huge sums in the bank?

    1. Susan Scheid Post author

      David: The statistics are indeed terrifying and, as you so justly note, a terrible waste of human potential and money misdirected. It’s not that we have no models for a better approach, either, like the humane, forward-thinking projects I’ve note here. We have well and truly lost our way, and it’s hard to see how we’ll be able to climb out of this abyss.

      1. Susan Scheid Post author

        Larry, David, Mark: I appreciate so much that you have each weighed in and wanted to add something more in reply. I’ve been thinking about each of your comments, as well as the overall issue, particularly the penchant for punishment as opposed to prevention or cure. Leipold’s article on the grand jury, as just one example, brings into sharp relief, at least for me, an underlying structural problem in how the system works. Along with critical reevaluation of what is criminalized at the front end and sentencing at the back end, it seems to me we need an entirely different approach to charging crimes. Right now, as I understand it, this lies entirely within prosecutorial discretion. I don’t think it’s necessary to attribute bad motive to prosecutors to get at this. It’s likely sometimes the case, but, for the most part, they are simply doing the job they are trained to do. It’s the hammer-nail thing: as an alternative, what if, for example, at least certain categories of potential charges were evaluated at the front end by an independent magistrate to determine whether the charge should be pursued or whether another intervention is more appropriate, at least in the first instance? For example, in the case of non-violent offenses where an underlying problem is related to a mental health problem or substance addiction, the magistrate could refer the individual for evaluation by an appropriately qualified professional and advise the court of recommendations for treatment options. Yes, the individual has to be willing to undergo the treatment–but also, relevant and useful treatment and support must be available. I certainly don’t want, for example, alcohol impaired drivers behind the wheel, but I also don’t think the criminal justice system has anything material to offer that addresses the underlying problem.

  3. Steve Schwartzman

    The fact that half of prison inmates are functionally illiterate caught the attention of this former teacher, who isn’t at all surprised. The literacy rate among the non-prison population of similar backgrounds isn’t high either. While prison may be an overly regimented way of putting order in people’s lives, I feel that most students would benefit from greater structure than many public schools in poor neighborhoods provide. From what I’ve read in magazines and seen in television documentaries, structured schools like the Kipp Academy have success rates significantly higher on average than the public schools. Apparently there are long waiting lists to get into such schools, and even lotteries to award the scarce slots, yet there is tremendous resistance of entrenched interests to expand the number of demonstrably successful schools. Let evidence rather than ideology carry the day, say I.

    1. Susan Scheid Post author

      Steve: Thanks so much for weighing in. I agree with you that we very much need to “Let evidence rather than ideology carry the day.” What we desperately need is a nuanced conversation on useful concrete approaches to these issues if we are to make any headway at all. Restoring Pell Grants for prisoners would be another helpful place to start (a pilot program in this direction is underway as of July of this year). There is, for one, good evidence that receiving an education improves outcomes after release from prison, including a significant decrease in the risk of recidivism. http://www.rand.org/pubs/research_reports/RR266.html

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