How Biden can build fairness and legitimacy in local criminal justice systems

The United States’ local criminal justice systems are tilting under the weight of an unprecedented crisis of legitimacy. Increasingly, Americans have begun to see the justice system and its actors as many of the nation’s Black and brown people have always viewed them: not just as beacons of justice, but as instruments of oppression, as well. George Floyd’s killing not only catalyzed anger against the police, it also surfaced the racism and inequity underlying the entire criminal justice system.

Incarceration levels remain too high. The consequences of a criminal conviction can mean a lifetime of poverty and misery. The traditional responses to crime are overly punitive, unfair and unjust. As documented in a new report by the Brennan Center for Justice, these outcomes hit Black and brown people hardest. It is no surprise that so many people view our justice system with distrust.

In confronting the challenge to reduce the system’s harms, one question stands out: “How should local criminal justice systems respond to crime?”

Fortunately, a roadmap for change can be seen in pockets of reform around the country. It is a framework for dealing with offending that can make a real difference in public safety, efficiency, and fairness. This approach has various names depending on where and how it’s used — it is sometimes called, “diversion,” or “alternatives to incarceration,” or “problem-solving justice.”

No matter what it’s called, the basic idea is the same: to provide community-based services and supervision instead of the traditional outcomes of incarceration, conviction, and fines and fees. Services can range from brief facilitated groups to long-term drug or mental health treatment; from community service to restorative justice. Local programs of these kinds exist across the country, and the U.S. Department of Justice has long worked to achieve further expansion nationally, for example by seeding and supporting drug courts and other ambitious initiatives.

In fact, many Americans — even crime victims — would generally prefer to see community-based services and supervision used instead of confinement and conviction, according to recent national surveys by the Alliance for Safety and Justice. For instance, in many situations, people believe that mental health or drug treatment would be a better — fairer — way to respond to many crimes than prison.

When I planned and helped launch the Red Hook Community Justice Center, a community court in Brooklyn, N.Y., I saw firsthand that improving access to social service mandates could transform justice for defendants, their families, and an entire community. Independent evaluators documented that the Community Justice Center increased public safety, reduced the use of conviction, and sent fewer people sent to jail. And we were able to take Red Hook’s lessons to New York City’s busy main courthouses (and to Newark, N.J., too), bringing effective and proportionate social services and supervision to more than 20,000 people annually.

Across the country, however, adoption of community-based programming has been scattershot, incremental, and episodic. To the extent such programs exist, narrow eligibility requirements severely restrict participation. Too many communities still offer too few options beyond the most punitive, traditional ones.

The time has come for jurisdictions everywhere to embrace community-based social services and supervision as the primary outcome — the default setting — to all but the most serious offending. In the process, systems would reserve confinement and conviction as the option of last resort and for use with the most destabilizing crimes, such as homicide, intimate partner violence, or sexual crime.

This shift in the general approach to offending will require real collaboration among local prosecutors, courts, defense attorneys, and police. But it is worth the effort. It will reduce the footprint and harms of the justice system. It will improve public safety. It will free up prosecutors, courts, and police so that they can focus resources and time on the most troubling crimes. It will save money. And it will make the system more fair.

As the new administration rolls up its sleeves and sets priorities for the U.S. Department of Justice, promoting constructive, proportionate, and meaningful community-based services and supervision as the default response to offending — rather than as a “diversion” or the “alternative” — should be a top priority. It would produce a criminal justice system that is seen as more legitimate by all Americans — victims, as well as defendants. And, most important, it would address the distrust of our local criminal justice systems felt by those who, for far too long, have paid the biggest price for the inequity and racism embedded in these systems.

Adam Mansky is the former Director of Criminal Justice at the Center for Court Innovation, where he led the Red Hook Community Justice Center and managed the center’s many criminal justice operating programs across New York City and in Newark, N.J. Follow him on Twitter @urbansdad