A view from the future: Questioning conventional wisdom in criminal justice

The public conversation about criminal justice has changed dramatically over the past generation. When I got my start in the early 1990s, the debate was dominated by the need to “get tough on crime” on behalf of “innocent victims.”  “Swift and certain” sanctions had to be administered to offending populations. And the government was exhorted not to make decisions based on anecdotes, but instead to invest in “evidence-based programs” that had proven their effectiveness in changing offenders’ behavior. 

All of these buzzwords and ideas have been interrogated in recent years, and many have been found wanting. In their wake, a new orthodoxy has emerged with its own unique vocabulary.  

If history is any guide, today’s innovation will become tomorrow’s conventional wisdom that needs to be overturned. So, which of the truisms that are ascendant in criminal justice at the moment might need to be rethought by reformers of the future? Here are five candidates:

Bold change: “We need bold change in our criminal justice system,” Sen. Bernie Sanders (I-Vt.) said during his presidential run. He is far from alone — calls for boldness are everywhere these days. The problem with this language is that it implicitly frames policy disputes as contests between bravery and cowardice. It suggests that we know what to do but simply lack the moral fortitude to do it. Twenty years from now, critics might ask why we were not more honest and more humble — the hard truth is that no one knows with certainty how to improve our criminal justice system in a way that improves fairness, reduces disparities and maintains public safety at the same time. 

Now is the time to listen to communities: It is difficult to argue with the idea that decision-makers should solicit input from people in crime-plagued neighborhoods. However, future observers might point out that communities rarely speak in a unitary voice. Indeed, anyone who has spent time at neighborhood meetings knows there are a multiplicity of voices within any given community. Some are wise, some are ill-informed, and many are somewhere in between. The current debate over police defunding or abolition offers an example of the challenges of simply listening to a community — both those who wish to defund the police and those who oppose this idea can reasonably claim they are representing the views of “the people.” 

Things are getting worse: Concern about racism in the American criminal justice system is rampant and many critics despair that the system is beyond repair. Indeed, some argue that the system is doing what it was designed to do — to keep Black people down. Despite this despair, the evidence suggests that, by many measures, things actually have gotten better in recent years. For example, the U.S. incarceration rate has been declining for a decade. And the Council on Criminal Justice reports that racial disparities in jail, prison, probation and parole populations have declined since 2000. According to Adam Gelb, who heads the council, “Most people think this is a bad problem that’s getting worse. It turns out it’s a bad problem that’s getting a little better.” Future observers might wonder why we didn’t celebrate the incremental improvements that we have made and look to build upon them. 

Incarceration doesn’t work: As a policy question, it is clear that we have overused incarceration, leading to a host of unnecessary harms for the individuals involved, their families, and their communities. But that doesn’t mean that incarceration is always the incorrect outcome in every individual case. Conversations with those who have been incarcerated often highlight this inconvenient truth. Not long ago, I asked a colleague who had spent significant time behind bars whether he could imagine a better response to his youthful criminal behavior than prison.  He shook his head. “I needed to be locked up,” he admitted. Indeed, his time away was crucial to helping him get his life back on track. Future historians might ask why, even as we looked to reduce the use of incarceration, we didn’t spend more energy on improving conditions of confinement, ensuring that our correctional facilities are more than inhumane warehouses.  

Wrong side of history: A 2019 New York Times opinion piece decried Vice President Kamala Harris’s record as a prosecutor, declaring that she was “on the wrong side of history.” This is not an unusual rhetorical move, particularly among progressives. But those who speak with confidence about the arc of history do so at their own peril. History tells us that the moral clarity of progressive reformers often has been justified, but not always. Reformers who advanced child labor laws or the abolition of slavery did indeed see through the cant of the day. But not all reforms turn out the way that advocates hope — after all, slum clearance, eugenics and Prohibition were once embraced by cadres of progressive reformers. Tomorrow’s critics may well ask why we did not proceed with more humility today. 

In many respects, the field of criminal justice is a better, more vibrant place today than it was a generation ago. The Overton Window has shifted considerably. Ideas that once would have been considered beyond the pale — such as closing the jail complex on Rikers Island or investing in community-based crime prevention efforts — are now very much in play. 

There are many reasons why the playing field has changed. Certainly, Black Lives Matter deserves an enormous share of the credit for helping to shine a spotlight on police brutality and changing public sentiment about race in America. But another important factor has been the commitment of many academics, government officials and nonprofit agencies to asking hard questions — looking at what works and what doesn’t and trying to figure out why — rather than simply repeating orthodoxies of the moment.  

In short, the health of the field of criminal justice depends upon both activism and analysis, protest and inquiry. Long may both continue.

Greg Berman is a distinguished fellow of practice at the Harry Frank Guggenheim Foundation, and the former executive director of the Center for Court Innovation (2002-2020). He is the co-author of “Start Here: A Road Map to Reducing Mass Incarceration.” The views expressed here are his alone. Follow him on Twitter @GregBerman50.