Alternatives to incarceration

Greg Berman, Talk Poverty - When I first started working in criminal justice in the early 1990s, it was almost impossible to have a conversation with an elected official or a high-ranking criminal justice policymaker of any political persuasion without talking about the need to be “tough on crime.”  The backdrop for these conversations was a pervasive sense of fear (of lawlessness on the streets) and despair (about the prospects of successfully rehabilitating offenders).

Today, I turned on my computer to discover that Newt Gingrich has endorsed the idea of reducing incarceration in the United States.  He is not the only voice on the right calling for change.  Indeed, hopeful analysts have cited criminal justice reform as one of the few potential areas where Democrats and Republicans in Washington might find common ground in the final two years of President Obama’s term.  Clearly, the center of gravity has shifted in terms of the politics of crime.

A lot of hard work has gone into making this happen... Take New York, for example.  Between 1999 and 2012, New York reduced its prison population by 26 percent—a decline of nearly 20,000 inmates.  The use of jail in New York City has also been reduced—the daily head count on Rikers Island is now less than 11,000, down from more than 21,000 at its peak.

Even as New York’s jail and prison rolls have gone down, so too has crime, declining by 69 percent over two decades.

Most of the public acclaim for these developments has gone to the New York Police Department and New York City mayors who have made crime-fighting a priority. Under the radar, the judicial branch has also played an important role.

Thanks to the leadership of Chief Judge Jonathan Lippman and his predecessor Judith S. Kaye, the New York courts have made a sustained institutional commitment to creating a variety of alternative-to-incarceration programs.  The courts have developed special programs for defendants with substance abuse and mental health problems.  They have sought to increase the use of services in cases involving 16 and 17-year old defendants and victims of human trafficking.  And they have launched a number of community-based programs that have sought to promote alternative sentencing in high-crime neighborhoods. (In the interests of full disclosure, my agency—the Center for Court Innovation— has worked with the judiciary to conceive and implement many of these projects.)

Crucially, the alternative programs launched by the New York courts target not just felony defendants but also people charged with misdemeanors.  Misdemeanor convictions may expose defendants to less time behind bars, but the consequences can be long-lasting in terms of employment, housing, child custody, student loans, immigration status, and a host of government benefits. For many, a misdemeanor conviction is another step along a path that leads toward a life of poverty...

One of the hidden truths of the justice system is that minor cases are much more voluminous than serious offenses. As John Jay College recently documented, nearly 75 percent of the arrests that the police make in New York City are for misdemeanor crimes – more than 235,000 in 2012, for example.

In response to the preponderance of minor cases, the New York courts (with an assist from the Center for Court Innovation) created Bronx Community Solutions to provide criminal court judges in the Bronx with additional sentencing options for non-violent offenses such as drug possession, shoplifting and prostitution.  This includes community restitution projects as well as social service classes, job training and individual counseling.

One challenge that has long plagued alternative-to-incarceration programs is the Field of Dreams question: if you build it, will they come?  Will judges actually avail themselves of alternatives?

The experience in the Bronx suggests that when alternative programs have been developed with the active involvement of the judiciary, they are more likely to win the support of the judges on the ground who ultimately determine whether someone is incarcerated or stays in the community.  According to the New York City Mayor’s Office, after Bronx Community Solutions began offering alternative sentences to misdemeanor defendants in the Bronx, the percentage of convicted defendants sentenced to jail fell from 23.7 percent in 2004 to 13.5 percent in 2012—a 43 percent reduction.  Keep in mind, this is not a boutique program dealing with a handful of participants; each year Bronx Community Solutions works with about 9,000 defendants.

But this battle is by no means won—plenty of work remains to reduce the number of people in Rikers Island, particularly those who are detained pre-trial.  However, Bronx Community Solutions has made one thing perfectly clear: change is possible—even in high-volume, urban justice systems.

Greg Berman is the director of the Center for Court Innovation in New York and the author of Reducing Crime, Reducing Incarceration (Quid Pro Books).  You can follow him on Twitter @GregBerman50