The Path Forward: Columbia Law Confronts Reform

Mass incarceration is one of the defining civil rights issues of our time. With 2.2 million people in prisons and jails across the United States, it is imperative that we remediate bias and inhumanity when it encroaches on our system of criminal justice.

The passage in late 2018 of the bipartisan First Step Act, a federal criminal justice reform bill, marked significant progress. But meaningful and lasting change cannot be left to legislators and policymakers alone.

Through scholarship, litigation, advocacy, and representation, Columbia Law School faculty, students, and alumni are exploring and promoting strategies that will reduce mass incarceration, create safer communities, respect individual rights, and affirm human dignity. Gillian Lester Dean and the Lucy G. Moses Professor of Law

law.columbia.edu/criminal-justice-reform Policing What reforms follow the decline of stop and frisk?

The steep drop in crime in the United States over the “In some ways, Who gets past 25 years has coincided with the spread of a style you’re asking arrested?* of policing that aggressively enforces low-level offenses to do things that (turnstile jumping, public urination) to deter more- WHITE serious crimes. The effectiveness of the so-called are inconsistent More than Arrest rates broken-windows strategy is disputed and controversial, with what they 69% by location 10.6 of arrests but such enforcement remains significant: Over 80 are sworn to do, (per 100,000 residents) percent of the 10.6 million arrests in 2016 were for low- 77% of level, nonviolent crimes, according to the Vera Institute which is simply million U.S. population Major cities of Justice, which tracks arrest data. to enforce the law. arrests were (>50,000 residents) made in the Research by Professor Jeffrey A. Fagan showing racial But you can’t have 3,332 United States BLACK bias and ineffectiveness in police stop-and-frisk tactics blinders on. What in 2016, was key in Floyd v. City of New York, a 2013 federal class is, at the end of 27% City suburbs down from of arrests action against the New York City Police Department. the day, the best 4,604 Fagan’s work led to a dramatic decrease in the use of stop a peak of 15.3 million  13% of and frisk. His research in New York and in Ferguson, solution? What is in 1997. U.S. population Small cities Missouri, after the 2014 death of Michael Brown, also the fair solution? A sample of (<50,000 residents) documents the crushing effect of broken-windows policing What’s going to be those arrests: 4,090 on low-income communities and among blacks and NATIVE AMERICAN Hispanics. Vigorous enforcement can lead to “legal pro- the best resolution? Violent offenses Vera Institute ceedings that over time evolve into tougher penalties that It may not simply 4.8% 2.3% of Justice leave criminal records with lasting consequences,” he says. be to just enforce of arrests Simple assault “The model of intensive face-to-face physical contact the law as it’s 10.1% 1.3% of U.S. population between police and civilians is outmoded,’’ Fagan says. written.” “There needs to be experimentation in different Property offenses Former U.S. Attorney policing models. We can substitute smart analytics (theft, burglary, General Eric H. Holder Jr. ’76, arson) ASIAN for heavy-handed police tactics.” on the arrests of two 12.7% African-American men 1.5% Professor Justin McCrary’s research has shown that the of arrests for sitting at a table mere presence of police in a neighborhood reduces crime, Drug crimes at Starbucks 14.8% but the challenge remains in determining how to police 5.8% of U.S. population in high-crime areas where residents feel simultaneously Other nontraffic underprotected and overpoliced. “People tend to have both offenses mind-sets: ‘I need the police, but they also just roughed 30.5% Vera Institute of up my brother for no good reason,’” McCrary says. “Police Justice report “Every departments need to engage with their communities in Vera Institute Three Seconds”; a way that actually makes them feel protected.” of Justice report U.S. Census population “Every Three Seconds” estimates 2017, U.S. Census Bureau

*Vera Institute and the U.S. Census Bureau categorize “Hispanic” as an ethnicity, not a race. Cash Bail Are algorithms the answer?

The social and economic costs of the bail system and “Pretrial practice and pretrial incarceration are pervasive and corrosive. the bail experience 63% of the “People can lose their jobs, homes, and even custody are shaped almost of their children after only a day or two in detention,” 720,000 says Associate Professor Kellen Funk, who recently entirely by the people in published “The Present Crisis in American Bail” in The peculiarities of local local jails Yale Law Journal. “Studies show that locking people up law. An individual pretrial can be a cause of future criminality.” are there arraigned in one pretrial. The California Money Bail Reform Act that was signed jurisdiction may U.S. Bureau of 99% into law in August 2018 was supposed to end cash bail in find even the most that state and was hailed as a model for other jurisdictions. Justice Statistics of jail No longer would judges incarcerate individuals awaiting critical rules of population trial based on rigid bail schedules and inability to pay. . . . Instead, risk-assessment algorithms would help determine unrecognizable growth which defendants should be incarcerated, based on how from 1999 much of a threat they pose to public safety or the likelihood from that of her that they would not show up for court appearances. peer, accused of the to 2014 was in the But many of the bill’s original proponents opposed the identical crime in a final version, including the ACLU of California, which neighboring state.” detention of said it could not “promise a system with a substantial pretrial and Dorothy Weldon ’19, founder of reduction in pretrial detention.” The bail bond industry the Columbia Bail Fund Project, other also fought the law and gathered enough signatures for a which trains students to be referendum; California voters will decide the fate of the The non- licensed bail bond agents who law in November 2020, when the question appears on post bail for indigent clients, in 25,000 convicted the ballot. her article “Bail Again: Reform- bail bond individuals. The proposed alternatives to cash bail that are sweeping ing Appellate Review of Bail agencies the nation may not be a panacea. Funk and students in Determinations in State Court” in the Prison Policy Initiative his seminar on the American bail system submitted a (Columbia Law Review) United States paper to the Criminal Law Advisory Committee of the generate Judicial Council of California in 2018 cautioning that risk $14 billion in assessment, even by algorithm, involves subjective judg- annual revenue and ments and political choices that could lead to the continued $2 billion detention of the same population of low-income arrestees. in profit.

Nevertheless, Funk is optimistic about the bail reform “Selling Off Our movement: New Jersey has virtually eliminated cash bail, Freedom,” a joint New Mexico has restricted it, and New York will elimi- report by Color of nate it for most misdemeanors and nonviolent felonies Change and the beginning in 2020. He continues to write and file amicus American Civil briefs in federal courts challenging the constitutionality of Liberties Union cash bail. “Protection of pretrial liberty from arbitrary detention is a core part of our constitutional tradition,” Funk says. Sentencing Does the punishment fit the crime?

Should a rapist go to prison for two years, five years, “The conservative Nearly or life? Should an embezzler serve one year or 10? case for reform one in 97% Policymakers, legislators, prosecutors, and judges share is obvious: of federal responsibility for the length of criminal sentences and nine defendants the growth of state and federal prison populations by 350 Spending billions people in convicted of a percent from 1980 to 2016. The rise is attributed in part of dollars on U.S. prisons— felony or Class A to changes in mandatory minimum sentencing policies. prison expansion 162,000 inmates— misdemeanor offense Professor Daniel C. Richman, a former federal prosecutor, and lengthy sen- are explored the topic in his essay “Accounting for Prosecutors,” tences is outdated accepted a published in Prosecutors and Democracy (Cambridge serving plea-bargain and ineffective. University Press, 2017). Since prosecutors decide what agreement And the state level a life charges to bring and against whom, he says, they in effect with define criminal law. . is where reform prosecutors That is an In Richman’s seminar on sentencing (which he teaches will be the most rather than all-time high. with Judge Richard Sullivan of the U.S. Court of Appeals effective—the receiving a for the 2nd Circuit), students consider the purposes of majority of people An additional verdict at prison sentences: keeping criminals off the streets, 44,333 deterring crime, and providing retributive justice. are incarcerated in trial. “Retribution sounds medieval because people think state systems.” individuals U.S. Sentencing of vengeance, but you can think about it in terms of are serving Brandon Garrett ’01, author Commission moral deserts,” Richman says. of Convicting the Innocent: “virtual life First-time Discussions about sentencing reform often focus on Where Criminal Prosecu- sentences” of violent reducing mandatory minimum sentences for drug tions Go Wrong and a pro- 50 years or offenders fessor at Duke Law School, offenders, who comprise just 20 percent of the overall more. sentenced prison population. By contrast, 50 percent of the prison in Slate to population is serving time for violent crimes, including The Sentencing Project rather than aggravated assault, kidnapping, murder, and rape. prison: “You could release the entire population of drug offenders across American jurisdictions, and it 1984: wouldn’t change America’s status as the world leader in incarceration,” Richman says, though he adds that the 37% harsh realities of the drug trade must still be addressed. 2015: “Until we figure out how long it is appropriate to keep violent offenders in prison,” he continues, “we’re not 7.1% going to have serious sentencing reform.” Bureau of Justice Statistics and U.S. Sentencing Commission Juvenile Justice Why are police arresting so many children of color?

Although the overall incarceration rate has increased “Safety does not In 2016, nationwide, the number of children locked up in the exist when black 2,100 people United States has fallen by more than 50 percent since 2001. But as in the larger criminal justice system, a and brown young were serving disproportionate number of them are children of color. people are forced a juvenile to interact with a sentence of Research shows that racial disparity in arrests especially among African-American youth drives the dispropor- system of policing life without tionate incarceration rates, says Associate Clinical that views them as . Professor Colleen Shanahan ’03, who has documented a threat and not Since Montgomery the impact of juvenile court fees on low-income families v. Louisiana (2016) of color. “The question becomes, what explains the as students. . . . made retroactive African- racial disparity in arrests?” Police in schools a previous ruling American is an issue of Number ending such In schools, for one, zero-tolerance discipline policies youth in the American racial of children sentences, 1,700 and more police officers have created a school-to-prison incarcerated people have been Los Angeles pipeline in which students accused of misbehavior— disparity that in 2000: resentenced (but school system a situation that is itself subject to racial bias—end up in requires deep remain in prison). juvenile court. Girls of color face harsher school discipline 108,802 structural change.’’ in 2016: 25% of arrests, than their white peers, as Professor Kimberlé Crenshaw Slate, Campaign citations, or for the Fair Sentencing detailed in her 2015 report “Black Girls Matter: Pushed Judith Browne Dianis ’92, 45,567 diversions in 2018 of Youth Out, Overpoliced, and Underprotected.” executive director of the  Advancement Project, in <9% of But many states have recognized the enormous expense the student the report “We Came to of juvenile detention facilities and their failure to prevent 69% population Learn: A Call to Action for repeat offenses. Alternatives like community-based of children sent Police-Free Schools” programs and smaller group-living facilities prioritize to residential University of age-appropriate rehabilitation. The sharp decrease also placement by a California, Los Angeles, Million Dollar reflects a developmental model of juvenile justice— juvenile court Hoods Project much of it based on work by Professor Elizabeth Scott— that recognizes that a significant portion of juvenile crime are is due to adolescent immaturity. children

This newer approach to young offenders has support of color. across the political spectrum because it is “more effective Office of Juvenile and cheaper than locking kids up, which is more likely Justice and to result in kids’ engaging in a life of crime,” Scott says. Delinquency In 2005, the U.S. Supreme Court ruled in Roper v. Simmons Prevention (OJJDP) that the death penalty for juveniles is unconstitutional. The court cited “Less Guilty by Reason of Adolescence,” a 2003 journal article Scott co-wrote. In 2012, citing Roper and Scott, the court held that juveniles could not be subjected to a mandatory sentence of life imprisonment without parole. The court adopted Scott’s argument that adolescents are less culpable than adults because their brains are not fully formed, and therefore they deserve less punishment.

Punishment What is cruel and unusual?

Professor Robert Ferguson wrote that U.S. prisons are “If I were a queen, Individuals “harsher than those in any but totalitarian countries” there would be no in solitary in his seminal book, Inferno: An Anatomy of American confinement Punishment. He quoted U.S. Supreme Court Justice death penalty.” spend Anthony Kennedy, who bemoaned in a speech to the U.S. Supreme Court Justice American Bar Association that allowing a penal system Ruth Bader Ginsburg ’59, 22 to 23 “to degrade or demean individuals is not acceptable in at Columbia Law School, hours a day a society founded on respect for inalienable rights of September 21, 2018 in cells the people.” measuring These concerns are at the heart of separate cases taken 60 to 80 up by Columbia Law Professors Brett Dignam and 80,000 square feet. 2,721 Bernard E. Harcourt on behalf of individuals in solitary individuals are on confinement and on death row. Working with teams of people U.S. Department of Justice death row in the students, they have raised challenges to practices they “The victims’ are in solitary 30 states where argue are unconstitutional and inhumane. families have been confinement capital punishment is legal. In 2018, Harcourt tried to stop the execution of Alabama told their catharsis in the United inmate Doyle Lee Hamm, whom he has represented pro States. 55 (2 percent) bono since 1990. He submitted detailed medical evidence is going to come are women. to demonstrate that cancer and intravenous drug use from punishment. U. S. Bureau of had compromised Hamm’s veins and that attempting to And it’s just cruel, Justice Statistics via Criminal Justice perform a lethal injection would be “barbaric” and violate American Friends Project of the NAACP the Eighth Amendment’s prohibition of “cruel and unusual because it doesn’t.” Service Committee Legal Defense and Educational Fund punishment.” Harcourt was proved right: The execution Clive Stafford Smith ’84, attempt was halted after Hamm was subjected to more author of Injustice: than two hours of bloody prodding. Life and Death in the

Courtrooms of America, 517 Similarly, is tantamount to torture, people were on in The Guardian death row in 1968. according to research by Dignam and students in the Challenging the Consequences of Mass Incarceration U.S. Bureau of Clinic, which she directs. They are representing Richard Justice Statistics Reynolds, who had been living in “extreme isolation” on death row for 21 years when, in 2016, the Connecticut Supreme Court upheld the state’s 2012 abolition of capital punishment. As a result, he was later resentenced to life imprisonment but subjected to a new statute that mandated permanent solitary confinement. In April 2019, five clinic students argued in U.S. District Court for the District of Connecticut that Reynolds’s treatment violates the Eighth Amendment, the 14th Amendment, and the Constitution’s ex post facto clause.

“The legal claims are complicated,” says Dignam, “but our immediate goal was to get him out of solitary and into the general prison population.” Release and Reentry How can the formerly incarcerated make a new life?

As the prison population has soared since 1990, so has “ is often More than the number of people released: In 2016, nearly 875,000 linked to financial people were under parole supervision in the United two-thirds States, according to the U.S. Bureau of Justice Statistics insecurity, and of former state (BJS). Reentry programs aim to reduce the high rate of finding work after prisoners are recidivism, but the difficulty, Professor Susan Sturm incarceration is rearrested says, is matching the scale of the programs to the need. Adults with no difficult. Helping within “There is very good data about what works to help individuals develop high school formerly incarcerated people transition to living in skills to build their three or college the community,” Sturm says. “How you implement years of credentials programs at a systemic level—that can have the own businesses (25+) impact on the programmatic level—is something offers them a route release. that we don’t have answers to.’’ to a more secure U.S. Bureau of Since 2000, 25% of the formerly Some federal funding is available for reentry programs and stable future.” the number Justice Statistics incarcerated to help formerly incarcerated people find jobs, housing, Meg Gould ’21, who is and health care. The First Step Act of 2018, for instance, of adults  co-developing a program provides $375 million over five years for reentry programs, under 13% of to help formerly incarcerated the public though it has not yet been fully funded. people become certified parole Sturm’s work has focused on access to education because paralegals supervision it is “one of the most important ways” of preventing has risen recidivism. Only half of adults in prison have a high school diploma or an equivalent, according to BJS 21% to Adults with statistics. The Center for Institutional and Social Change, 874,800. bachelor’s which Sturm directs, teamed with Hostos Community degree College in New York City to identify the barriers keeping U.S. Bureau of

formerly incarcerated people out of education programs. Justice Statistics (25+)

Columbia Law Professor Philip Genty, an expert in 4% of the prisoners’ rights and family law, is designing a new formerly incarcerated clinic for Columbia Law students that will focus on remedies for “collateral consequences” of incarceration, such as the ability to seal a conviction or win back a 29% of the public work-related license.

Genty wants to find ways for formerly incarcerated people to build on skills they learned in prison, Prison Policy Initiative whether it is pro se legal research or peer mentoring. A program to help a jailhouse lawyer become a paralegal, for instance, would provide not only a good job but also the ability to help other formerly incarcerated people. “Part of what works, I think, is bringing people together who have experiences from inside the prison,” Genty says, “not only to support each other but also to build on each other’s strengths.” A Jailhouse Lawyer’s Manual

“The manual helps to empower prisoners to exercise a right “You guys should be given medals. I am an HIV positive inmate. I’ve learned we, as a society, hold dear—the right to speak for oneself. . . . so much and been able to give my fellow prisoners a lot of help. I love your BOOK. I wish I could have typed this letter but I’m confined to SHU [solitary A Jailhouse Lawyer’s Manual should be read by everyone confinement] punishment housing. . . . I think every person who comes to involved in, or concerned about, prisoners’ rights.” prison in NY State needs this fantastic book. . . . This Book could also be called Law for Dummies. I knew nothing the first time I got ahold of this book. Foreword by U.S. Supreme Court Justice Thurgood Marshall, 1992 Please keep up the good work.’’ A Jailhouse Lawyer’s Manual is a handbook of legal rights and procedures produced Prisoner, Auburn Correctional Facility, New York, 2003 for use by people in prison by the student editors of the Columbia Human Rights Law Review. Since the publication of the first edition in 1978, tens of thousands of incarcerated “Enclosed is a Final Judgment Order from a litigation enforcing my civil rights. people have used the manual to learn about and exercise their legal rights. More Be happy to know I justly used my JLM throughout the case acting pro se. than 1,000 copies are shipped annually to prisoners, institutions, libraries, and legal Specifically, utilizing the Summary Judgment [template] provided. Attorneys practitioners across the United States. that I contacted seeking representation as the case was being set for trial wrote and said my work is some of the best pro se they’ve seen.’’ Prisoner, Mount Olive Correctional Complex, West Virginia, 2017

“I went to settlement in the United States District Court. . . . A Jailhouse Lawyer’s Manual is the reason for my success. The manual is easy to use and under- stand. It is important you know your hard work pays off.” Prisoner, Lawrenceville Correctional Center, Virginia, 2017

“[I] just want to thank you for such a great book, not just for prisoners, but for [a] person in society who want to know [their] equal rights as a human being of this country. . . . Please continue the great work, because you’ve helped me change my way of thinking in more ways than you can ever imagine.’’ Prisoner, Cape Vincent Correctional Facility, New York, 1998

Harold S.H. Edgar Kent Greenawalt James S. Liebman Justin McCrary Faculty Scholarship “Herbert Wechsler and “The Perplexing Borders of “A Broken System: The Controlling Crime: the Criminal Law: A Brief Justification and Excuse,” Persistent Patterns of Rever- Strategies and Tradeoffs, In addition to the works cited on the previous pages, Tribute,” Columbia Law Columbia Law Review sals of Death Sentences in co-edited with Phil Cook Columbia Law School faculty have produced these and Review (2000)* (1984) the United States,” with and Jens Ludwig, University other influential articles and books. Read these pieces Andrew Gelman, Valerie of Chicago Press (2011) Jeffrey A. Fagan Bernard E. Harcourt West, and Alexander Kiss, and more at law.columbia.edu/criminal-justice-reform. “Aggressive Policing and the The Illusion of Free Markets: Journal of Empirical Studies Daniel C. Richman and Educational Performance Punishment and the Myth (2004) Jeffrey A. Fagan of Minority Youth,” with of Natural Order, Harvard “Understanding Recent Joscha Legewie, American University Press (2011) Gerard E. Lynch ’75 Spikes and Longer Trends Sociological Review (2019) “Our Administrative System in American Murders,” of Criminal Justice,” Columbia Law Review (2017) George P. Fletcher Fordham Law Review Rethinking Criminal Law, (1998) Little, Brown (1978)

*Herbert Wechsler ’31 was a longtime faculty member at Columbia Law School and, as director of the American Law Institute for 21 years, created the still-influential Model Penal Code (1962). 435 West 116th Street New York, New York 10027

The Path Forward: Columbia Law

©2019 ColumbiaLawSchool Confronts Criminal Justice Reform