We asked the city for help, and we got a raid.
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 Crime, Vera 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 Issues, Law 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.
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.