The Path Forward: Columbia Law Confronts Criminal Justice 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 police 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. criminal procedure . 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. sentence. 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.