Criminal Justice Reform: The Clueless Atop A Soapbox

Over the past few days, criminal law reform has become a darling of discussion, with the Senate Judiciary Committee approving its bipartisan compromise, the prosecutors and head cops responsible for over-incarceration forming a cool club to pretend they’re going to save us from it, and a panel discussion with the President of the United States explaining how we’re going to fix everything, provided no cop gets a paper cut in the process.

Never has there been a bigger dog and pony show of empty rhetoric so carefully orchestrated to pacify public concerns by feeding them a heaping, steaming pile of bullshit. Sure, there will be some tiny changes, where the low hanging fruit is plucked so our law enforcement heroes can prove how much they care, and pat themselves on the back for being so reform-y that they’ll sprain something.

As anticipated, there is no front page story in today’s New York Times about how everything changed at 100 Centre Street yesterday, now that New York’s heroes of reform have changed everything.  Of course, that could be attributed to President Obama, who explained that it will take a long time, baby steps really, to make changes while making sure public safety isn’t compromised. 

Will the public be appeased by this Broadway spectacular?  The answer lies somewhere between the public’s ability to recognize when they’re being played for fools, fed insipid vagaries, meaningless words couched in the rhetoric of “reasonableness,” and the next dead black body.

There are forces, however, contributing to the mass confusion over mass incarceration, that need to be recognized. And the worst part of it is that these forces are promoted by media that should, in a better world, be illuminating problems rather than obfuscating them.

Not to sound like more of a broken record than ever, but when the New York Times lets someone hop atop their huge soapbox, it would behoove them to make sure their pitch wasn’t ridiculously clueless. And yet, an op-ed appears today, on top of that steaming pile, by Stanford Business School professor, Lawrence Wein, and Cornell lecturer, Mericcan Usta, that is so strikingly clueless as make the mind boggle.

The op-ed focuses on Los Angeles jails, due to the mandated reduction in the prison population and use of local jails for warehousing low-level felons.  The crux of the argument is that split sentences of imprisonment and supervision are a viable way to reduce the numbers of people in jail without sacrificing public safety.  Hardly a new idea to anyone with a clue about the system. But they present the obvious with the most astoundingly misguided trade-off imaginable.

Judicial and correctional systems can reduce their jail populations to manageable levels either by offering pretrial release to defendants, hoping they appear in court and don’t flee, or by offering split sentencing, in which sentences for low-level felonies, like shoplifting something worth more than $950 and check forgery, are split between jail time and mandatory supervision.

Yes, they just conflated pretrial detention, those guys they “hope” will appear and not flee, with convicted felons.  And came out on the side of denying bail to the presumptively innocent because, well, they hate Kalief Browder.

Our analysis of data from the Los Angeles County jail system, which is the world’s largest, suggests that split sentencing is much more effective than pretrial release at making the best of the trade-off between the size of the jail population and public safety.

Split sentencing exposes the public to the recidivism risk of one day for every saved jail day; e.g., if a low-level felon receives one year of mandatory supervision, then we risk 365 days of having a felon on the street in exchange for a reduction of 365 jail days (which represents a $40,000 cost savings).

In contrast, a person charged with a low-level felony waits 53 days on average from arraignment to case disposition if he or she is held in custody, but waits 191 days if awarded pretrial release. Why the difference? For understandable reasons, the courts give higher priority in their trial dockets to defendants under pretrial custody than the defendants on pretrial release.

That’s what it apparently looks like to people without the slightest clue what they’re talking about, but why should that prevent them from using the Times’ megaphone from shouting insanity to the masses?

While it’s true that courts give higher priority to “in cases” than out, that’s got nothing whatsoever to do with the difference in disposition time. It’s a nice assumption, provided you have absolutely no idea what actually happens, but it’s completely wrong. Wein might have taken a clue from the number of cases that go to trial, upon which it might have dawned on him that moving a case to trial has nothing to do with anything.

But the obvious answer is that people detained cop pleas to get out rather than fight their charges. Take the plea today and you walk out of the courtroom. Challenge the charges and you will spend the next year or more in a cell, before conviction.  Great choice, which is why people released have a huge advantage.

This, of course, is so utterly basic to anyone paying even a little attention that it was barely worth the space here to mention it. You know it. I know it. Everyone knows it. Except the guys who get some of the most valuable real estate in the media world.  And the poor mopes who read their tripe.

Was this a set-up, another act in the Kabuki Theater of criminal justice reform? Probably not. Hanlon’s Razor and all. But over the next few days, weeks, months, we can anticipate being deluged with reformist ideas and rhetoric, and unduly optimistic voices that once challenged the faults in the system will report glowingly about the great reforms being accomplished, the heart-warming words of our political and law-enforcement leaders, who have heard our cries and responded with bold initiatives that will change everything.

Full of sound and fury. Signifying nothing.

10 thoughts on “Criminal Justice Reform: The Clueless Atop A Soapbox

  1. angrychiatty

    I’ve noticed that when it comes to the subject of criminal law, a seemingly very high percentage of people have strong and vocal opinions about how it “really” works and what should or should not be changed…despite having absolutely zero training or experience in the field. There doesn’t seem to be the same prevalence of dunning-kruger behavior in many other fields, such as (for example) accounting or engineering, although yeah I get that such behavior exists everywhere to varying degrees. But especially with respect to criminal law, this attitude seems to go all the way to the “top” (/s) of the opinion food chain, here in the form of Wein and Usta.

    What is it about criminal law that makes people so absolutely certain that their total lack of knowledge is not an impediment to having a strong opinion?

    1. Dave

      The TV airwaves aren’t inundated with shows giving a false picture of the lives of engineers and accountants.

    2. SHG Post author

      I’ve been giving your question a lot of thought. There is the obvious answer, that crime, cops, law are just inherently fascinating to people, as reflected in the never-ending stream of TV fodder, books and movies. But that doesn’t explain why it’s so fascinating, or why people who know nothing more than what they are fed by media think they’re entitled to form and express an opinion about it.

      My thought is that it not only affects, to a greater or lesser extent, something that touches everyone’s life, but that there is an inherent sense of “justice” involved, and most people believe that their sense of justice matters, and so their opinion on matters involving justice are valid. Screw the details, they’re confident that whatever they perceive as justice is, by definition, true and important. And everyone else needs to know it.

      1. John Barleycorn

        Funny how that works. Too bad winter is comming or you could slap a habeas corpus bumper sticker on that dust collector of yours sitting in the garage and hang out in a strip mall parking lots and take a survey of how many people mistake it for an MG while picking their brains about wheather or not a certain senator from Iowa reminds them of Frankenstein and how safe they feel talking to strangers in strip mall parking lots now that there will only be a few million people in jail instead of a few million and three.

        1. SHG Post author

          Funny thing is, I listen to guys talking about my dust collector, telling their girlfriends, “Yeah, that’s the car James Bond drives.” They look at me, and I just shrug. No way I’m getting involved in other people’s relationships.

    3. Chris Ryan

      There are a multitude of reasons for this issues, and taken together it leads to a cesspool of stupidity.

      Dunning-Kruger is not limited to any one field, and I see it all the time in my field (transportation related engineering). It just happens that with this crowd, the criminal law version shines brightly.

      One large problem for non-lawyers (including me) is the difficulty in finding good un-biased information. To believe that simply because we are not lawyers means we should not have an opinion is both foolish and short-sighted. It would be great if only knowledgeable people would vote for ballot measures, politicians, etc, but we all know that isn’t true.

      Some of the best places to get accurate criminal law information do not exactly welcome non-lawyers, so in turn those same non-lawyers turn to sources that do welcome them. Those sources, unfortunately, are quite often worse then garbage.

      Add to this whole mess the simple fact that most of the people in the trenches do not have time in their schedule to help educate the masses, and what we are left with is the educating being done by those with time (there are exceptions but not enough). I have to admit that I am guilty of this in my field. I cringe when I hear some explaining some simple fix to our transportation/accident problem, but yet I refuse to take what little time I have free to combat those people.

      1. SHG Post author

        I generally agree with you, but one point needs clarification.

        To believe that simply because we are not lawyers means we should not have an opinion is both foolish and short-sighted.

        It’s not that “simply because we are not lawyers.” There are a lot of people who comment here (and write about it elsewhere) who aren’t lawyers, but know a lot about the subject matter and are very smart people. They aren’t lawyers, but that doesn’t mean they aren’t more knowledgeable than a lot of lawyers, including trench lawyers. I give them enormous credit, given that they “get it” despite not being lawyers.

        That said, all non-lawyers aren’t the same. To say that “simply because we’re not lawyers” misstates the problem. That some people are woefully lacking in knowledge, experience and understanding is the case. That criminal defense lawyers (not just lawyers, but CDLs; there’s a difference) tend to be far more knowledgeable is completely understandable. That non-CDLs tend not to be is similarly understandable. But it’s not “simply because we’re not lawyers.”

      2. angrychiatty

        “Dunning-Kruger is not limited to any one field, and I see it all the time in my field (transportation related engineering). It just happens that with this crowd, the criminal law version shines brightly.”

        Well true enough, but I wonder if that doesn’t really explain the degree to which people’s opinions on CL are not only generally uninformed, but also seemingly opposed to accurate information. I certainly can’t speak for your experiences in this regard, but I wonder whether folks are generally willing to listen to you when you explain to them why their “simple fix” won’t work in transportation-related engineering. Conversely, I find that many people just don’t want to hear/believe any information that conflicts with their opinion about how the justice system works/should work. Maybe its just as simple as Scott says above, that everybody has an idea about what’s “right” and “wrong,” and that’s enough for them damnit. But that doesn’t seem to explain why so many people are resistant to hearing the inconvenient details. Who knows. Maybe I come into contact with more cement-heads than the average person. Or maybe I’m such a condescending asshole no one wants to listen to what I have to say.

        1. Chris Ryan

          One of the largest obstacles to overcome in the CL discussion is that the majority of people (lawyers and non-lawyers alike) have no first-hand experience with the criminal justice system. A great chunk of people that do have some experience are like me, in that its very limited, and not really enough to be of any use in the overall discussion.

          I find that many people fail to understand a simple thought process that when you are asking about any specific field, be it CL vs engineering vs plumbing, you really should call an expert.

          It does not help, in any way, shape or form, to see our political leaders (or our “thought leaders”) on TV pontificating on subjects they dont know squat about. Unfortunately, the masses figure they must know something as “stupid people dont get to be ”

          The largest dilemma in my mind is that regardless of if people should act on their crappy opinions, they do in fact act (best example is voting). Sane, knowledgeable voices are seldom heard and more often then not drowned out if they do speak up. I don’t have the solution to this problem, and to be honest, people like me probably don’t help the debate much.

          1. SHG Post author

            Sane, knowledgeable voices are seldom heard and more often then not drowned out if they do speak up.

            Two problems. First, how do you know who’s sane and knowledgeable? Second, even if everyone acknowledged certain voices to be sane and knowledgeable (and honest brokers, a point you left out but one I find critical), understanding them requires more thought and effort than most people are willing to give. Thinking is hard. People hate doing it.

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