Proponents of the new wave of “criminal justice reform” claim that their efforts are nonpartisan, non-ideological and “evidence-based.”
This “evidence-based” frame asserts that mass incarceration and “overcriminalization” will be remedied by a handful of sentencing reforms affecting “low-level” offenders. An essential element of such reform is the widespread use of “evidence-based risk-assessment” instruments to purportedly help authorities objectively determine who is “dangerous” – and therefore must remain in prison – and who is not.
Today, “alternatives to incarceration” represent a widening, not a shrinking, of the corrections net.
This isn’t a miracle cure; it is a lavishly funded public relations campaign advancing unfettered free-market “solutions” to criminal justice dilemmas and the politics of austerity. “Bipartisanship” is driven by a right-wing agenda and support from a constellation of libertarian and neoliberal economic interests. It is funded by Koch Industries and a handful of foundations and deep-pocketed donors. Yes, some high-profile people and groups considered liberal have signed on – but to messaging and strategic direction already established by the right.
Let’s place this public relations, marketing campaign for “bipartisan, evidence-based criminal justice reform” in its most relevant evidence-based context: the historic and contemporary race- and class-based patterns of policing and prosecution that are foundational to the criminal legal system.
Policing and Prosecution: Evidence-Based Context
The March 4, 2015, release of the US Department of Justice (DOJ) investigatory report of the Ferguson (Missouri) Police Department (FPD) distills, in damning detail, several aspects of the pervasive structural racism that drives that community’s law enforcement, city administration and economy. The deep mistrust between Black residents and FPD is compounded by the “focus on generating revenue” that accompanies the city administration’s insistence on increasingly aggressive law enforcement.
The contempt of predominantly White law enforcement and city officials for the Black residents they purportedly serve – 67 percent of the population – is reflected in email communications, offense reports and the municipality’s corrupt, excessive patterns of law enforcement that “overwhelmingly impact African Americans.” The report documents a pattern of stops and arrests that are unfounded and unconstitutional. City officials contend that this reflects a pervasive lack of “personal responsibility” among “certain segments” of the community.
From 2012 to 2014, African-Americans accounted for 85 percent of vehicle stops, 90 percent of citations and 93 percent of arrests. Black people were much more likely to be cited and arrested following a stop and to receive multiple citations for a single stop. Echoing the nation’s historically race-based enforcement of other vague offenses such as loitering, vagrancy and strolling about, some offenses, including “Manner of Walking in Roadway” and “Failure to Comply,” were brought almost exclusively against Black people.
“Justice reinvestment” policies are largely a shell game.
Weak recommendations aside, the report provides a sickening but invaluable contemporary snapshot of the structural racism and economic violence that pervades the US criminal legal system, justified under the rubric of “public safety.” This is how people – primarily poor and predominantly Black people, but also Latino/as and American Indian/Indigenous peoples – are unnecessarily and disproportionately swept into the system. The details may vary somewhat from community to community, but the essential storyline remains. Similar patterns are found in New York City, New Orleans, Minneapolis, Maricopa County, Arizona, and Chicago. This storyline is embedded in public school systems. And it includes the policing and prosecution of women, transgender and gender nonconforming people, and queer communities.
Raced and classed mass incarceration begins with the vast discretionary power of police officers, school resource officers and prosecutors who, consciously or unconsciously, act on racist beliefs about Black people and other communities of color. They are seldom held accountable for abuse and misconduct. From there, people are funneled into courts, jails, prisons, “community corrections” and mandated treatment programs (“alternatives to incarceration”). Increasingly, probation services and other forms of “community corrections” are being “offender-funded” and privatized. Today, “alternatives to incarceration” represent a widening, not a shrinking, of the corrections net.
This is the race-based US justice story implicating local, state and federal law enforcement authorities and civic leaders, reverberating back to the days of colonial settlement, chattel slavery and the creation of the US prison system. Today, that story includes mass incarceration, the explosive growth of “community corrections” and the disproportionate impact of “austerity economics” on poor communities – especially poor communities of color.
“Revenue generation” has always been an integral part of the story, ranging from slavery to the convict lease system to exploitative prison labor programs to the rise of an expansive “for-profit” prison and prison services sector to “offender-funded probation,” the expansion of mandated “treatment,” and electronic monitoring services and programs to Ferguson-like revenue schemes.
Against this backdrop, “bipartisan criminal justice reform” ignores this documented history – the only evidence that really matters if we seek real solutions to the injustices of a carceral society.
The “Evidence-Based Reform” Frame
A frame is a conceptual and rhetorical path that directs our attention to an issue in a particular way. It shapes how we understand the issue and points toward specific things we ought to do about it. The “evidence-based” frame is based on four interrelated, mutually reinforcing, false premises:
Dismantling mass incarceration can be accomplished without addressing the policing and prosecutorial practices/biases that determine who is (and who is not) funneled into the criminal legal system.
The existing criminal legal system is basically fair, and people caught up in it generally deserve to be there.
The problem is how to deal with flawed individuals who make bad decisions, have bad habits, may not have had a proper upbringing, and who commit crimes.
There is no need to critique or challenge the structural inequalities required by capitalism.
Structural racism – especially the anti-Blackness at its center – and economic violence directed against poor and low-income communities are irrelevant to “bipartisan reform.” Any racial disparities can be fixed in “race-neutral” ways, by tinkering with sentencing and release processes. The “bipartisan evidence-based” frame suggests that those released from prison (or sentenced to “alternatives”) will find a new abundance of useful community supports, although most won’t. Instead, many will be placed in the expanding web of privatized, for-profit halfway houses and treatment centers that are short on services and long on risk.
“Evidence-based reform” is a classic example of misdirection.
Many people persist in the false belief that savings realized from incarceration reductions will go directly to human needs and services – public education, for example. It’s wishful thinking. Decisions about “saved monies” are not part of this agenda; they will be made later. Or, as in post-Proposition 47 California, officials will decide how much revenue has actually been saved and whether education-related spending will actually be used for public education or for school policing, security and truancy-monitoring purposes. “Justice reinvestment” policies are largely a shell game.
Nor does the frame encourage us to look too deeply into some of the little-noted and appalling results of other recent “bipartisan” reforms in states like Mississippi and California. In both states, much lauded “reforms” have either actually increased the potential for escalated incarceration or simply shuffled prisoners from the state to county levels.
By refusing these areas of inquiry and analysis, the frame shoves us down a narrow rabbit hole of “big data” – statistical analysis of questionable factors, creamed and often irrelevant numbers, and methodological sleights of hand. The evidence-based frame tells us that this data, combined with sentencing reforms, will provide all we need to “fix” whatever ails our criminal legal system.
Big Data: Criminal Misdirection
Misdirection is the magician’s art: the ability to manipulate attention, thoughts and memory in order to convince people of a particular interpretation of specific phenomena or events. That interpretation is an illusion, derived as much from what people don’t see as what they are shown. In a civic sense, misdirection orchestrates attention away from complicated and difficult realities and toward “quick fixes.” “Evidence-based reform” is a classic example of misdirection. It offers the assurance that “smarter,” more objective and fair decisions about sentencing and release can be made more efficiently by judges, parole boards and other authorized officials on the basis of proven “big data” risk-assessment tools and outcomes that maintain or strengthen public safety, even as they cut costs by reducing recidivism.
In 2014, we discussed some early “evidence-based” reports attesting to the purported effectiveness of faith-based prison programs in reducing the recidivism risk of people once they were released.
In 2003, Mark A.R. Kleiman offered an analysis of the misuse and manipulation of data in an evaluation of [Chuck] Colson’s InnerChange program. The results of this study, Kleiman says, are the product of “selection” bias also known as “creaming” or “cooking the books” – that is, focusing on the most successful “graduates” who continued with the program after release and got/kept a job while ignoring less successful participants. The Urban Institute’s 2007 evaluation of Florida experience, while genially positive, suggested that any benefit in recidivism rates was very small at six months for men in one institution, but non-existent for anyone at twelve months. The Urban Institute evaluation also notes the possibility of “creaming” as a factor in results.
More recently, Sasha Volokh reviewed a number of existing studies – the methodologically flawed clunkers and those characterized as more valid evaluations – purporting to assess the effectiveness of faith-based prisons. Volokh eventually concluded that the studies generally reveal very little and provide no consistently clear or definitive answers.
… these studies generally avoid or lightly sidestep more difficult questions and controversies attending the preferential status given to particular evangelical Christian groups and programs.
More significant to “bipartisan reform” is the role of risk-assessment software programs, already used in at least 20 states. These tools, many of them proprietary and not open to public scrutiny, use statistical analysis of complex sources of data to predict the future crime risk of individuals.
Because poor people and people of color bear the brunt of mass incarceration, “[p]unishment profiling will exacerbate these disparities.”
These tools are not without criticism. Attorney General Eric Holder has warned that use of predictive data in sentencing is likely to adversely affect communities of color. University of Michigan legal scholar Sonja Starr explains that risk scores are based primarily or wholly on an individual’s prior characteristics, including criminal history – some instruments include not only convictions, but arrests and failure to appear in court. Other allegedly criminogenic factors “unrelated to conduct” often include homelessness, “unemployment, marital status, age, education, finances, neighborhood, and family background, including family members’ criminal history.” Starr asserts that because poor people and people of color bear the brunt of mass incarceration, “[p]unishment profiling will exacerbate these disparities.”
Seeking to blunt these concerns, the Laura and John Arnold Foundation, a major supporter of “bipartisan reform,” is currently piloting a new tool for risk assessment, the Public Safety Assessment – Court or PSA – Court, that uses “nine objective factors” (no interviews) without relying on factors like neighborhood or income. It includes a “red zone” marker for those deemed likely to commit future violent crimes, should they be released. The foundation would not share a copy of this “national model for pretrial risk assessment” when Truthout requested one, explaining by email, “we currently only share specifics with the jurisdictions engaged in implementation.”
The foundation seeks to “moneyball criminal justice” by working “toward a certification model which will inevitably make the details of the tool public” and offering it to jurisdictions at no cost. The goal “is that every judge in America will use a data-driven, objective risk assessment within the next five years.”
Risk-assessment tools are part of a much larger, troubling context of data-driven, predictive criminal profiling and so-called “preventive” crime mapping and policing. This history begins in the late 19th century with data-driven (and race/ethnicity, class and disability-based) identification of “born criminals” by Italian physician Cesare Lombroso, often considered the first criminologist, and informs the rise of the US eugenics movement. More modern uses of “evidence-based” profiling have played key roles in accelerating mass incarceration.
The end result of predictive profiling is to reify prison as the ultimate symbol and primary structure for securing “public safety.”
For example, as Raven Rakia notes, “broken windows” policing crafted “strategically choreographed, racialized fear” into an incarceration boom. This flawed theory – asserting that aggressive policing of minor “public order” offenses would prevent more serious crimes – spurred creation of CompStat, a data-driven predictive crime-mapping methodology that spread like wildfire. Its dubious data claims have been credibly challenged. These “data-driven” practices also inspired race-based “stop-and-frisk” policies that, according to the New York Civil Liberties Union, produced stops that were unfounded about 90 percent of the time. In the 1990s, using now-discredited data, false predictions (PDF link to originating book) forecasting terrifying waves of “juvenile superpredators” drove new legislation and policing practices that sent youth of color in droves into the criminal legal system – and many into adult prisons.
Predictive policing continues to expand and escalate. Today, for instance, the Los Angeles Police Department has inaugurated a new “data-driven” preventive policing program that relies on helicopter surveillance to deter crime. Who is under surveillance? Ask the predominantly Black communities and other people of color whom, as Hamid Khan writes in The Guardian, “are already disproportionately affected by police abuses in the city.”
The end result of predictive profiling is to reify prison as the ultimate symbol and primary structure for securing “public safety.”
Dangerous Triage: Redeemable and Expendable
The new “reform” agenda reinforces public safety as a precious commodity requiring limited distribution through systems of human triage. Risk-assessment tools select human beings as “redeemable” or “expendable” – worthy of being released (or initially sentenced into “community corrections”) or not worthy of being released from the routine brutality of US prisons.
The image that implicitly promotes such triage is the dangerous, murderous, violent and hardened “criminal.” The dominant US imagination has always distilled ideas of danger, violence and intrinsic criminality into race-based policing; former Ferguson police officer Darren Wilson demonstrated this when he said Michael Brown appeared to him as a demon. The Republican right – which dominates the “bipartisan reform” agenda – has long relied on the coded racism of the Southern Strategy and images of Willie Horton to further its aims.
These dangerous individuals, whom society is free to demonize, dehumanize and discard, are identifiable through risk-assessment models.
“Bipartisan reform” offers no challenge to this; rather, it promises the public that its methods will keep “dangerous criminals” locked up. These dangerous individuals, whom society is free to demonize, dehumanize and discard, are identifiable through risk-assessment models or computerized predictive policing.
And so people in prison in the age of “reform” will still be consigned to civil death, erased from individual and civic conscience. In the largely unexamined, brutal ironies accompanying new wave “reform,” the violence of solitary confinement, rape and sexual assault, and wretched medical care within inhumane environments remains intact.
There are promises that religious ministries will still serve those in prison. But “bipartisan reform” does not challenge the most favored status of conservative evangelical Christian ministries. Some – not all – new wave reformers suggest that we should look to restoring educational and rehabilitation programs in prisons, saying that this will mitigate concerns about the inhumanity of prisons. The promise of rehabilitation and educational opportunities in prisons has never been made available to more than a handful of prisoners at any time; even such small programs as existed previously were gutted as “tough on crime” policies gained ascendance. Other proposals, such as PriSchool, “a new typology of prison facility,” seek to symbolically and structurally merge education and incarceration.
As new statistics about the efficacy of reform emerge, we should be asking hard questions about what is actually being measured, over what period of time, and how information is correlated and reported. Unfortunately, mass media and many liberal or progressive politicians and advocacy groups do not. We should also ask what meaning “evidence-based reform” has when exhaustively documented race- and class-based patterns of policing and prosecution are left out of the analysis.
We can’t convince the right/libertarian/neoliberal-wing of “reform” to take a different path. But we should demand much more from ourselves – particularly from the liberal, progressive organizations giving cover to “bipartisan reform.” The “evidence-based” frame promises one thing, but delivers an expanded system of surveillance and control outside of prisons, while distilling the violence of prisons within them.
Yes, people must be released from prisons. They must also be released from the structural racism, poverty and other forms of violence that built so many kinds of prisons in society and in our minds.
How about starting with not arresting most people in the first place?
You can’t moneyball that.