But ignore the role they have to play in solving the problem.
Photo illustration by Lisa Larson-Walker. Photos by Sean Gardner/Getty Images, Andrew Burton/Getty Images.
Some of the biggest names
in American law enforcement gathered in Washington on Wednesday to
declare their support for reducing the number of people in jail and
prison and to assert their belief that lowering the incarceration rate
will not lead to an increase in crime.
It was a powerful demonstration of the dramatic shift in the politics of law enforcement in America in recent years, with police brass from some of the country’s largest cities—including New York, Los Angeles, Houston, and Chicago—joining prosecutors to state in unequivocal terms that the criminal justice system is locking up too many people who don’t need to be locked up.
It was a powerful demonstration of the dramatic shift in the politics of law enforcement in America in recent years, with police brass from some of the country’s largest cities—including New York, Los Angeles, Houston, and Chicago—joining prosecutors to state in unequivocal terms that the criminal justice system is locking up too many people who don’t need to be locked up.
“The way our country is currently approaching criminal
justice does not ensure public safety—in fact, it makes our jobs much
more difficult,” said the group’s co-chair, former New Orleans Police
Department superintendent Ronal Serpas. “Arresting and imprisoning low
level offenders prevents us from dedicating that time to serious
offenders and repeat violent offenders.”
Garry McCarthy, the superintendent of the Chicago Police
Department and the other co-chair of the group, put it more succinctly:
“It’s a crisis in the criminal justice system. There’s a crisis in
policing today.”
For this influential group to say such things is unquestionably
significant. Their willingness to call for a more lenient criminal
justice system will provide political cover
for lawmakers and other officials who might otherwise balk at
supporting reform efforts for fear of being accused of coddling
criminals or being anti-police.
It will also make it a lot harder for advocates of tough-on-crime policies to argue credibly that the massive drop in crime that the U.S. has seen since the 1990s is the direct result of mass incarceration—an intuitive, common-sense theory that has nonetheless been proven wrong by the best academic research on the subject.
It will also make it a lot harder for advocates of tough-on-crime policies to argue credibly that the massive drop in crime that the U.S. has seen since the 1990s is the direct result of mass incarceration—an intuitive, common-sense theory that has nonetheless been proven wrong by the best academic research on the subject.
But for all the welcome sounds these 130 police chiefs, sheriffs, and
prosecutors are making, something important is missing. From the
group’s “Statement of Principles,”
which centers on drug treatment programs for addicts, the
reclassification of some nonviolent felonies to misdemeanors, and the
elimination of some mandatory minimum sentences, it’s clear the authors
believe that the burden of reducing the prison population falls mainly
to lawmakers.
Absent from their vision for how to solve the problem of mass incarceration is any mention of the vast discretion that police departments and prosecutors’ offices have in deciding who to arrest, and what kind of charges, release conditions, and prison sentences to push for in court.
Absent from their vision for how to solve the problem of mass incarceration is any mention of the vast discretion that police departments and prosecutors’ offices have in deciding who to arrest, and what kind of charges, release conditions, and prison sentences to push for in court.
“Discretion,” in this context, refers to the power that law
enforcement agencies have to focus their energies and resources on what
they think is important.
It plays out on a case-by-case basis but tends to be informed by an overall strategy. So if a police chief decides that his department will give out tickets instead of arresting people for quality of life offenses like drinking beer on the sidewalk—as McCarthy did as the top cop in Chicago, and previously, Newark—he’s asking his officers to use discretion when confronted with instances of low-level law-breaking.
Or when a district attorney decides not to bring cases against people who have been caught with small amounts of marijuana—as Brooklyn D.A. Kenneth Thompson did in 2014—he’s encouraging his prosecutors to use their discretion in making charging decisions in order to spare minor offenders jail time.
It plays out on a case-by-case basis but tends to be informed by an overall strategy. So if a police chief decides that his department will give out tickets instead of arresting people for quality of life offenses like drinking beer on the sidewalk—as McCarthy did as the top cop in Chicago, and previously, Newark—he’s asking his officers to use discretion when confronted with instances of low-level law-breaking.
Or when a district attorney decides not to bring cases against people who have been caught with small amounts of marijuana—as Brooklyn D.A. Kenneth Thompson did in 2014—he’s encouraging his prosecutors to use their discretion in making charging decisions in order to spare minor offenders jail time.
The fact is that if the heads of law enforcement agencies are serious
about reducing the incarceration rate, there’s a lot they can do on
their own to help make that happen.
Just look at what Attorney General Eric Holder did in 2013, when he issued a memo calling on the nation’s federal prosecutors to avoid triggering mandatory minimums for non-violent drug offenders who don’t have ties to gangs or organized crime.
That policy change, which required no buy-in from legislators, had an immediate effect, resulting in a 20 percent drop in the number of federal drug cases that carried a mandatory minimum.
Just look at what Attorney General Eric Holder did in 2013, when he issued a memo calling on the nation’s federal prosecutors to avoid triggering mandatory minimums for non-violent drug offenders who don’t have ties to gangs or organized crime.
That policy change, which required no buy-in from legislators, had an immediate effect, resulting in a 20 percent drop in the number of federal drug cases that carried a mandatory minimum.
Police discretion is consequential as well: As explained in this report by the Brennan Center for Justice (the
same think tank that played a key role in bringing together the group
of 130 police and prosecutors), policies enacted by the NYPD during the
1990s resulted in a massive reduction in felony arrests—and drove the
state prison population down by 17 percent and the jail population down
by 38 percent between 2000 to 2009.
As the Brennan report concluded, “Police practices have a monumental impact on mass incarceration” because they “are almost always the first point of contact between an individual and the criminal justice system.”
As the Brennan report concluded, “Police practices have a monumental impact on mass incarceration” because they “are almost always the first point of contact between an individual and the criminal justice system.”
The significance of prosecutorial discretion has been definitively
demonstrated as well: Fordham Law School professor John Pfaff found that
between 1994 to 2008, the probability that a district attorney in the
U.S. filed a felony charge against someone who’d been arrested went from
about 1 in 3, to 2 in 3—and the prison population rose accordingly. In a
recent paper in the Harvard Journal of Legislation,
Pfaff argues that the increased aggressiveness of prosecutors has been
“the primary engine of prison growth,” at least since the early 1990s.”
The influence that prosecutors and police chiefs wield has so far
gone largely unacknowledged by the group of reformers who made their
debut this week. There’s nothing in their mission statement about
encouraging their fellow law enforcement officials to change their
practices.
And while there is some nice-sounding material about the need for police departments to build trust with the communities they serve, there’s a big shrug where a self-directed plan should be: “We know that changes must happen within our departments. But as police and prosecutors, we are obligated to enforce the law, which often over-criminalizes and over-punishes.”
And while there is some nice-sounding material about the need for police departments to build trust with the communities they serve, there’s a big shrug where a self-directed plan should be: “We know that changes must happen within our departments. But as police and prosecutors, we are obligated to enforce the law, which often over-criminalizes and over-punishes.”
For these individuals to place the blame for mass
incarceration almost entirely on punitive laws, while ignoring the fact
that they have an enormous amount of control over how those laws are
enforced, is akin to a smoker saying he can’t quit until cigarettes
become illegal.
If the prosecutors in the group think mandatory minimums for nonviolent offenders are a bad idea, then they should be using their bully pulpit to call on the nation’s prosecutors to stop charging arrestees as aggressively as they can and using the massive penalties that come with those charges as weapons during plea bargaining. And if the police chiefs in the group think their cities’ jails are too full of drug offenders, why aren’t they calling on all 18,000 police agencies across the country to stop putting handcuffs on people for simple possession?
If the prosecutors in the group think mandatory minimums for nonviolent offenders are a bad idea, then they should be using their bully pulpit to call on the nation’s prosecutors to stop charging arrestees as aggressively as they can and using the massive penalties that come with those charges as weapons during plea bargaining. And if the police chiefs in the group think their cities’ jails are too full of drug offenders, why aren’t they calling on all 18,000 police agencies across the country to stop putting handcuffs on people for simple possession?
I asked Garry McCarthy on Thursday about why his group’s
Statement of Principles is so focused on the need for new legislation,
and not focused at all on what the people who signed on to it could be
doing on their own. He answered by denying that police officers have the
kind of discretion that they most certainly do have.
“We don’t have the ability to interpret the law, we have to enforce
it,” McCarthy said. “An officer who takes a joint from a kid and throws
it down a sewer, he’s committing a crime. So while people might want us
to do it, we can’t.”
That might be true on paper, but the reality is that police officers
are constantly making decisions about whom to ticket and whom to arrest
based on judgment calls and departmental priorities.
And while there’s no question that lawmakers have a role to play in sending fewer people to jail for possession—law enforcement does too. When New York Mayor Bill de Blasio took office, he made it a priority to give cops the leeway to issue marijuana users citations instead of placing them under arrest.
De Blasio’s police commissioner, William Bratton—who might be the most prominent police chief to sign on to the new reform group’s Statement of Principles—takes a dimmer view of marijuana use than his boss. But on Oct. 8, he made a very public show of using discretion—one that will surely have an effect on the rank and file—when he noticed a college student smoking pot in broad daylight, and instead of arresting her on a misdemeanor drug charge, snatched her joint and threw it away.
And while there’s no question that lawmakers have a role to play in sending fewer people to jail for possession—law enforcement does too. When New York Mayor Bill de Blasio took office, he made it a priority to give cops the leeway to issue marijuana users citations instead of placing them under arrest.
De Blasio’s police commissioner, William Bratton—who might be the most prominent police chief to sign on to the new reform group’s Statement of Principles—takes a dimmer view of marijuana use than his boss. But on Oct. 8, he made a very public show of using discretion—one that will surely have an effect on the rank and file—when he noticed a college student smoking pot in broad daylight, and instead of arresting her on a misdemeanor drug charge, snatched her joint and threw it away.
If the reformers who stood on stage Wednesday in Washington—and met
with President Obama on Thursday—are serious about taking a leadership
role in the war on mass incarceration, they should be encouraging police
departments to change their practices accordingly. And the district
attorneys who are working alongside them need to acknowledge that
historically, their offices have behaved as though being a good
prosecutor means always pursuing the maximum penalty in every case.
It is an unambiguously promising step in the right direction for some
of the nation’s top law enforcement leaders to have lined up behind the
need for a less blindly punitive criminal justice system.
Their calls for decriminalization, sentencing reform, and drug treatment programs matter, and they will probably help bring about change.
At the same time, these leaders need to take responsibility for the role they themselves could be playing to help this country end its addiction to jail and prison.
That means going beyond calling on other actors in the justice system to make the system less harsh, and seizing the immense power they have to do so themselves.
Their calls for decriminalization, sentencing reform, and drug treatment programs matter, and they will probably help bring about change.
At the same time, these leaders need to take responsibility for the role they themselves could be playing to help this country end its addiction to jail and prison.
That means going beyond calling on other actors in the justice system to make the system less harsh, and seizing the immense power they have to do so themselves.
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