Overhauling the federal and state criminal justice system sounds like a great idea. After all, our prisons are grossly overcrowded, expensive, and filled with many non-violent offenders, drug addicts and mentally ill inmates. Prison may not be beneficial for them, or society.
And an ever expanding set of criminal laws helps put them there.
Legislators such as U.S. Sen. Jim Webb of Virginia have proposed sweeping changes in the criminal justice system, but to date those changes haven’t happened, and Webb has announced his intent to leave office after one term.
“Fixing our system will require us to reexamine who goes to prison, for how long and how we address the long-term consequences of their incarceration,” Webb said back in 2009. “Our failure to address these problems cuts against the notion that we are a society founded on fundamental fairness.”
Monroe County Public Defender Tim Donaher is pleased that there is beginning to be broad-based, non-partisan consensus that the criminal justice system “has warts” and lacks fundamental fairness. However, Donaher said without adequate and equitable funding, the system will continue to be skewed in favor of prosecutorial agencies.
“If you truly want it to be fair, there can’t be a gross disparity of resources and there is a gross disparity in the amount of money the state gives to police and prosecutors,” he said. “The concept to fair justice begins and ends with competent counsel. It only works when both sides have similar access to resources.”
Scott Forsyth, counsel to the local chapter of the American Civil Liberties Union, said the inadequacy of indigent defense is very much an ACLU issue.
“It’s up to the legislature to devise a constitutional system,” Forsyth said. “But if they continue to do nothing, it’ll come back to the courts.”
Forsyth is more optimistic of seeing criminal justice reform at the state level than the federal level, but believes it will be piecemeal at best.
“There are reform bills in New York but they relate to discovery for the most part,” said defense attorney Donald Thompson. “There isn’t a real proposal to do better. It’s politically popular to be as aggressive as possible in sentencing but the problem is it isn’t cost effective and it doesn’t work.”
Thompson lamented the fact that more reasonable approaches to sentencing, such as early intervention, are shouted down and seen by voters as being soft on crime.
In many cases, judges at the federal level don’t have sentencing discretion and the prosecution has the power to determine what sentence to give defendants, a function judges previously fulfilled.
“Political views have become too important. It’s infected the whole system. It’s not what we envisioned,” Thompson said.
Forsyth said the criminal justice system lacks fairness in dealing with all members of society in an even handed manner, resulting in a disparate impact on poor and minorities.
Thompson cited an example of prejudicial punishment in federal sentencing for “black guys in the ghetto who use crack” and “white guys in the suburbs who use powder [cocaine].”
Crack cocaine sentencing was recently reformed but still remains disparate and does not provide relief for those convicted before the reform law took effect.
Donaher said in recent years there has been a frightening expansion of criminal conduct that shouldn’t be considered criminal conduct.
“In the last 20 years there has been as explosion of new state and federal crimes,” he said. “The legislature is always passing some new criminal law, making criminal, conduct that shouldn’t be.”
The danger of over criminalization is what Donaher called the law of unintended or “collateral consequences.” For example, many fines accompanying criminal offenses set the indigent up for perpetual failure.
Other examples Donaher cited included not being able to get a student loan for minor drug convictions, losing Section 8 housing assistance for minor convictions and losing a driver’s license for a failure to pay fines. In these cases, the unintended consequences of well-meaning laws have the potential to cause homelessness and unemployment that can affect entire families.
“It’s not due to malevolent intent but our criminal justice system is not the fairest,” Donaher said.
Forsyth said incarceration should be used as a last resort for those who are a proven threat to society, but the mentality of locking up a convicted person and throwing away the key is difficult to overcome despite the cost.
Prison cost is an issue Gov. Andrew Cuomo wants to address, but as Thompson said, the governor’s focus is based on budget, not ideology. The prospect of reform is often there but a vote in the state or federal legislature for the passage of sweeping criminal justice reform isn’t.
“Once we get in a situation where there’s a danger of something passing, maybe we’ll listen more closely,” Thompson said.