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A different view of the justice system

Monday, February 20, 2012

The New Criminal Justice-Unnoticed but not Uneventful


The most important social trend of the past 20 years has many experts baffled: The United States’ plunging crime rate.

The homicide rate fell 51 percent between 1991 and 2010, from 9.8 per 100,000 residents to 4.8 per 100,000.  Property crime also fell sharply during that time.  Auto theft, once an almost accepted menace of urban life, dropped an astounding 64 percent.  According to an FBI report these trends continued in the first half of 2011.

Americans also report being less fearful of crime.  According to Gallup, 37 percent of Americans say they fear walking alone at night within a mile of their homes.  This is down from 48 percent three decades ago.

Most criminal justice experts are at a loss to explain the precise causes of crime’s decline. Some observations defy conventional wisdom such as lower crime in the middle of tough economic conditions.  Increasing incarceration gives a partial explanation.  But crime rates continued to fall after December 31, 2008 when incarceration peaked at about 1.5 million. 

It seems clear that many have underestimated Americans’ capacity to tackle a seemingly uncontrollable problem and fix it.  For the past 20 years there’s been a quiet revolution occurring in criminal justice seemingly beyond the view, and perhaps the grasp, of many experts. What’s at the heart of the remarkable drop in crime is the transition from the traditional criminal justice system to a new criminal justice model.

The traditional criminal justice model is composed of several semi-autonomous justice institutions designed to process cases at several points within each agency.  This “system” has no cohesive overarching common mission, principles, and values.   Policy formulation hinges on the passage of new laws at the Federal and State levels.   

By contrast, the new criminal justice is about the justice system working collaboratively with each other and with citizens to solve common problems at the neighborhood level. What drives the new criminal justice is a shared mission of creating and maintaining safer communities by problem solving.   There’s a focus on local problems and on local solutions.  What’s occurring is more than the “next best thing” in justice practice but a true paradigm shift.  This new paradigm creates interdependence between each agency in order to solve common problems rather than merely process cases.

One important new element is the role of citizens and local business owners. Citizens play a central part by working in partnership with the system in helping to address problems and helping to craft solutions.  This is a change from the traditional model that often views citizens as punitive-minded and useful only in terms of buying into new programs and laws crafted by politicians.  This disconnect is caused by citizens, feeling ignored by the system, expressing their anger and frustration at their perception of a true “criminal” justice system.  The traditional response has been to pass tough on crime sentencing laws that spark a backlash from reformers calling for less punitive policies.   This creates the never-ending pendulum swings between tough on crime policies versus more leniencies. 

The effort has always been to reform the system.  What’s occurring now is an effort to transform it.  Reform efforts have failed to achieve favor with the public because they focus on the wrong problem.   Criminal justice reform is almost always focused on incarceration and the means to reduce it.  There are constant calls for more alternatives to incarceration despite the fact that more than two thirds of our corrections population is already on community supervision (alternatives) rather than locked up.  Out of more than 7 million people under correctional supervision, more than 5 million are on probation and parole.  The rest are in prisons and jails.  The demand on the system has thus been to do what it’s already doing

The real problem with the system is that it’s reactive rather than proactive.  Its focus is on responses to individual acts of criminal behavior rather than on strategies to tackle crime.  The police were the first to understand the importance of proactive practices. The result was problem-oriented or community policing.  The other justice agencies have now adopted these transformative practices.  Nowhere is this more apparent than in the courts, probation, prosecution, and even prisons and jails.


A prime example of the new justice system is the Midtown Community Court in Manhattan. In the 1980’s Midtown Manhattan was in the grip of escalating criminal violence and urban decay.  There was a feeling of hopelessness and helplessness among citizens and business owners regarding solutions.  This was a perfect example of the notion put forth by JK Stewart in 1986 that crime causes poverty rather than the other way around.  As crime and disorder increase within communities people stay away and deprive businesses of customers thereby forcing many to close thereby destroying jobs and reducing the tax base leading to a reduction in services, etc. 

The Times Square Business Improvement District (BID) composed of local business owners, teamed up with the court system in New York City to establish the Midtown Community Court.    The court was set up specifically to address quality of life crimes such as aggressive panhandling, public urination, street prostitution and drug dealing.   This gave the NYPD a further incentive to continue to pursue its new strategy, adopted by Mayor Rudolph Giuliani and Police Commissioner William Bratton, of addressing these types of offenses.

The court was established within the neighborhood it served and provided swift accountability to offenders.  Sanctions were reparative in nature, consisting of cleaning up graffiti and other signs of urban decay.  The court provided an array of health and social services within the premises in order to help offenders transition to crime free lives.  The city’s sanitation department helped supervise offenders assigned community service.  Members of BID sat on the court’s advisory board and provided valuable policy input. 

This collaborative strategy had other ancillary benefits.  The police found that many suspects arrested for low-level offences were carrying weapons or narcotics.  Many had outstanding warrants for more serious offences.  In 1996, John Royster was arrested for brutal attacks on four women over a period of several days.   The crime might not have been solved but for the fact that fingerprints recovered at one of the crime scenes matched those taken from Royster when he was arrested three months earlier for a low-level offense of jumping a subway turnstile.

The Midtown Community Court continues its work within a transformed neighborhood where crime has decreased dramatically.   Other “problem-solving courts” have been established in other districts.  At the Red Hook Community Justice Center in Brooklyn the prosecutor and defense lawyer are part of the same team working on the long-term best interest of individual defendants and the community.   This is truly a radical departure from the litigation-based adversarial approach characterizing the traditional criminal justice model.

Another justice component in the midst of transformation is Probation. According to the Bureau of Justice Statistics Probation is the most crowded corrections component with more than 4 million offenders under supervision.  Probation departments struggle with a burdensome mix of escalating caseloads and diminishing resources.  This has forced probation to rethink its mission and reinvent its practices. 

Probation is an alternative to incarceration.  The traditional mission of probation is primarily that of an advocate for offenders to help them comply with court orders that will keep them out of prison.  Probation officers refer to offenders on their caseloads as “clients”.  This singular focus on offenders caused probation to lose favor with the public and become ineffectual in terms of public safety.  

In the 1990’s many probation officials began to embrace a new concept of probation.   They saw probation’s mission, not only as providing services to offenders but in broader terms of doing justice, serving victims, and protecting the community.   A new type of probation practice evolved under the umbrella of what came to be called Community Justice.    In 2000, the American Probation and Parole Association put forth a position statement on community justice.   The position statement is perhaps the most comprehensive interpretation of the new justice paradigm.  It defines community justice as:

a strategic method of crime reduction and prevention, which builds or enhances partnerships within communities.

It describes its modus operandi as that of:

… confront(ing) crime and delinquency through proactive, problem-solving practices aimed at prevention, control, reduction and reparation of the harm crime has caused.

Building on this model, the probation department in Quincy, Massachusetts decided to address domestic violence and break the cycle of violence by viewing victims as primary clients.  They now view Domestic violence not only as a crime against the victim but also a crime against the community.  Besides offering batterer-specific treatment to the offender, probation officers work with the police and other agencies to identify and respond to instances of domestic violence.  Probation officers do not hesitate to revoke offenders who violate “no contact” orders, even for the slightest infraction.  This helps to guarantee that the batterer will not manipulate or intimidate his way back into the home and increase the level of violence. 

Operation Nitelite, in the Roxbury section of Boston, was formed as a joint venture of the Boston Police Department and the Probation Department of the Dorchester Court.  Police and probation officers work jointly to address community concerns related to youth violence.  Joint patrols check for curfew and other violations of probation.  Officers work with parents to help them reassert parental control.  Schools, churches, and other community institutions also help supervise juvenile offenders.


Prosecution has been transformed in the past 20 years through community prosecution. A pioneer in community prosecution was the Multnomah County District Attorney’s Office in Portland, Oregon.  In 1990, the office established a Neighborhood District Attorney (NBDA) unit in direct response to citizens and business groups concerned with neighborhood safety.   The unit works with police, citizens, and social services to address quality of life offenses.

In Denver, CO the District Attorney’s Office works with community justice councils composed of residents, teachers, school administrators, business owners, and faith leaders to identify problems and devise solutions.  One of the benefits is that some quality of life issues are resolved without formal action by the state or city prosecutor.

Community prosecutors in various jurisdictions have succeeded in closing down drug houses.  They work to evict gang members from their dwellings thereby disrupting their activities.  The justice components working in concert with each other and with the community for a common purpose creates a vital energy that can confront and subdue crime.


Experts have long predicted that our overcrowded prisons would soon erupt into violence in a rash of disturbances.  In fact, just the opposite has happened.  Prisons have become much more peaceful in the past 30 years.   Better staff training and inmate classification systems have dramatically decreased prison homicides.  Between 1980 and 2003 the state prison homicide rate dropped from 54.0 per 100,000 inmates to an astounding 5.7 per 100,000.  Better architectural design of facilities has also made Attica type uprisings virtually a thing of the past.

In the 1970’s the Federal Bureau of Prisons pioneered the use of a new type of institutional design called the direct supervision model. This model has now spread throughout the correctional system.  Direct supervision borrows heavily from the principles of Crime Prevention Through Environmental Design or CPTED (pronounced sep-ted).

CPTED focuses on creating crime-free environments in public places and direct supervision strives for the same thing at the institution level.  The institution is divided up into manageable units each with its own staff.  The focus is on managing the environment rather than on controlling the inmates.  One might say it’s a microcosm of community-oriented policing in prison and jail.  Officers are in constant and direct contact with inmates and get to know them so they can respond to trouble before it escalates into violence.  Negotiation and communication become more important staff skills than brute strength.

This has contributed to safer and more humane environments within prisons and jails.  Between 1983 and 2002 jail suicide rates dropped 64 percent.  State prison suicide rates, historically much lower than the rate in jails, dropped from 34 per 100,000 inmates to 14 per 100,000 during the same period.

The new criminal justice challenges one of the most sacrosanct elements of the traditional criminal justice--namely the issue of recidivism and the question regarding its relevance as a success measure.  If the purpose of the system is to keep people out of prison, recidivism is a valid success measure.  If the purpose is community safety it is not.

We know that a person can avoid incarceration for a variety of reasons, including victim intimidation, while continuing to wreak havoc in the community. Relying on recidivism also has unintended consequences.  Probation and Parole officers are often instructed not to revoke anyone unless or until they commit a serious offence such as murder or assault.  Many serious offences could be prevented by revoking certain habitual offenders, such as chronic domestic abusers, at the first sign of trouble such as a minor violation.  To do so however would be considered a failure in the traditional system.  Community justice recognizes that reducing recidivism and reducing victimization ARE NOT one and the same.

New success measures still need to be articulated and formalized.  These could include violence and other crime reduction, restitution paid to victims, and public perceptions of safety as well as satisfaction with the justice system.


The criminal justice revolution has not been ignored or gone unnoticed by all experts.  A book called THE NEW CRIMINAL JUSTICE: AMERICAN COMMUNITIES AND THE CHANGING WORLD OF CRIME CONTROL describes the changing justice paradigm.  The authors, John Klofas, Natalie Hipple, and Edmond McGarrell highlight describe and contrast the old system with the new. 

Despite indications pointing to a new justice model, critics continue to view the change through an old lens.  They still view things in terms of the tension between pro and anti-incarceration forces.  They believe that increased arrests for “quality of life” offenses may increase incarceration as well as yield greater power and authority to the state.

In the traditional model the police, indeed the entire justice system, are viewed as a necessary evil by many academics and scholars.  This is perhaps in keeping with American tradition.  Our founders, ever mindful of governments’ tendency to encroach on civil liberties, ensured that individual rights as well as the means to defend against the abuse of state power were codified in our constitution. 

What’s important to understand is that the new criminal justice is not about increasing the power of the state.  It’s about diffusing its power among the justice components as well as the community. Most importantly it’s about increasing the voice of citizens and victims. Citizens who support the system with taxes are entitled to demand a good return on their investment. 

The irony that’s lost on so many experts is that the traditional model is dependent on passing more laws or amending existing ones at the legislative level.  The new criminal justice usually requires that justice agencies merely adopt a new mission and change their operating principles and practices. These changes are often crafted with the participation of citizens, victims, and local businesses.

Criminal justice transformation has been occurring seemingly beyond the ken of many academics, scholars and social pundits.  The people and the justice system have teamed up to solve common problems.  It’s a case of the people being ahead of the experts.  Perhaps that’s been the problem.  Experts have all the answers. We’re finally beginning to ask the right questions.