Evidence-based paths toward criminal justice reform

As recent events at the Capitol make clear, criminal legal reform is a moral and civic imperative for the new Biden administration. President Joe Biden ran, in part, on a promise of reducing the United States’ outsized reliance on incarceration, correctional supervision and fines and fees and committed himself to addressing systemic racism in the criminal system. Recent events have only increased the urgency for smart, compassionate criminal legal reforms that are based on empirical evidence, rather than on instinct or past practice.

Evidence-based criminal law reform — which draws on lessons learned from medicine and other disciplines — advocates policies driven by the results of research, rather than by anecdote or collective assumptions. Evidence-based reform is widely known in corrections policy and police investigations and new research has led recent reforms of bail, sentencing and the death penalty. 

But if the Biden administration wants to truly move the needle, it must direct its attention to widespread reform opportunities in venues that have often been overlooked. We suggest that the Biden justice agenda include a focus on research and evidence-based reform in three key areas: prosecutorial charging discretion, participatory defense efforts and the needs of small, tribal and rural, or STAR, communities. 

Prosecutors are perhaps the most powerful and least understood actors in the criminal justice system. Until recently, charging has been a black box, but new research now illuminates this process, sometimes with disturbing conclusions.

Too often, over-policing produces crushing caseloads that force prosecutors to work too quickly and with too little information as they make their charging decisions. As a result, they may default to considering extralegal factors in charging and their personal backgrounds and experiences may, however unintentionally, influence their charging decisions. A lack of training and written guidance may mean that novice attorneys never implement the well-intentioned reform policies adopted by elected district attorneys. And lengthy delays in making charging decisions may leave suspects languishing in jail for weeks — or even months — before prosecutors even decide how to charge them. 

To cure this problem, larger offices should adopt specialized charging units, staffed by experienced prosecutors who receive training and supervision to prevent disparate results and who are afforded the time and resources to make prompt and accurate charging decisions. The administration can support this effort by offering federal funds to support research-based efforts to improve the accuracy, fairness and timeliness of prosecutorial charging decisions. And to guarantee the ongoing development of evidence-based practices, those who receive these funds should be required to work with researchers to document, refine and report on their practices.

On the other side of a courtroom sits a criminal defendant. The vast majority of these defendants are represented by public defenders or assigned counsel. Yet public defense is terribly underfunded and public defenders are overloaded. Defense lawyers meet their clients for the first time just minutes ahead of court proceedings, caseloads are enormous, limiting attorneys’ opportunities to prepare, and case processing encourages defendants to plead guilty rather than challenge the state’s evidence.

Many policy prescriptions have been offered to increase funding and reduce caseloads, but those measures focus on courts and lawyers as the locus of power and change. A different approach centers on participatory defense: a community-organizing model for defendants, their families and communities. 

Through participatory defense, families and communities partner with assigned attorneys — and push them if necessary — to advocate for their loved ones. Religious leaders write letters to judges about impending sentences, family members document what their loved one means to them, community members work together to hold prosecutors, defense attorneys and judges accountable for smart, compassionate and fair justice systems.

Part policy initiative and part movement, participatory defense offers the opportunity to improve public defense, rebalance power disparities that harm poor defendants and reduce the footprint of the U.S. criminal justice system that incarcerates a higher percentage of its citizens than do other industrialized nations. Not only can participatory defense reform the criminal justice system, but it also can empower citizens and communities. Following the lead of the MacArthur “genius” grants, the administration should fund and support participatory defense efforts nationwide. 

In all aspects of the law, it has become customary to see America as divided into a geography of ‘blue’ and ‘red.’ But in the criminal legal arena, the more significant divide is between urban (and suburban) areas, which receive national attention and STAR communities that too often are ignored. Federal datasets focus on the largest urban counties, with 40 years passing since the last national report on rural criminal justice. It is essential that policymakers turn their attention to STAR communities, collecting data about the size, scale and cost of these small, tribal and rural criminal justice systems. One fact is painfully clear, however­ — STAR communities are legal deserts with few, if any, experienced, criminal lawyers on either side of the aisle.

The Biden administration can act now to address this access-to-justice crisis. For more than 50 years, federal and state governments, medical schools and hospitals have worked to recruit and retain physicians to practice in rural communities and there is a body of empirical evidence about those programs. A federal justice initiative could work with bar associations and law schools to create a STAR attorney service program that offers educational grants, loan forgiveness and other incentives to law students who commit to a STAR criminal legal practice. 

Many of these measures require the cooperation of state and local governments, where the great bulk of the American criminal justice process is practiced. But the federal government can take the lead in initiating reform. In a promising first step, the administration has nominated Vanita Gupta and Kristen Clarke to serve, respectively, as associate attorney general and assistant attorney general for civil rights — top-notch lawyers with vast expertise in fighting for racial and social justice in the criminal legal system.

We have already heard the new administration’s promise to “follow the science” in tackling the coronavirus. It’s time to ‘follow the evidence’ and reform our criminal legal system.

Jon Gould, foundation professor of Criminology, Justice and Law and director of the School of Criminology and Criminal Justice at Arizona State University, was a senior policy adviser in the U.S. Department of Justice during the Obama administration. Pamela Metzger is professor of Law and director of the Deason Criminal Justice Reform Center at SMU Dedman School of Law. They are co-editors of “Transforming Criminal Justice: An Evidence-based Agenda for Reform,” expected later this year.