2016 Spring Symposium: “Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration”

Friday, April 1, 2016

8:45 a.m. to 4:00 p.m.

Wake Forest University School of Law, Room 1312

CLE Credits: 5.25 General Hours Approved

This event is free and open to the public.

Registration is now Closed.
Thank you to all who attended and/or participated.

A campus parking map can be found here. Reserved parking will be available for registered symposium attendees at the Winston-Salem First Church parking lot (Letter A on the map). A shuttle will run from that parking lot to the law school.

Please direct any questions to Lauren Emery at [email protected].

Description

There is a growing consensus across the ideological spectrum that we must revisit the role of incarceration in our criminal justice system and develop sustainable reforms to reduce the prison population. Despite declining crimes rates over the past two decades, the prison population has increased dramatically in the United States. Currently, an estimated 2.2 million people are incarcerated in the nation’s prisons or jails, which means that the United States incarcerates more people than any other country in the world. When the number of those in prison is combined with the of number of people on probation and parole, nearly 6.9 million people, or 1 in 35 adults, are under the supervision of the adult correction system in United States. Criminal justice experts and policymakers have long considered the economic and social impact of this phenomenon of “mass incarceration” and have concluded that our nation’s current criminal justice strategy is unsustainable. Furthermore, because Blacks and Latinos are imprisoned at higher rates, communities of color experience the detrimental impact of mass incarceration disproportionately.

This symposium will explore policies and practices to address mass incarceration and critically examine innovative solutions that both promote public safety and reduce incarceration rates. Panels comprised of academics and practitioners will discuss evidence-backed strategies for reducing the prison population. Panels will also explore local and national reforms that address each phase of the criminal justice process including: the school to prison pipeline with mass incarceration, innovative reforms in policing, prosecution, and post-conviction and how each of these phases intersect and relate to mass incarceration.

Dr. Cedric Alexander, Chief of Police for DeKalb County, Georgia and a member of President Obama’s Task Force on 21st Policing will deliver the keynote address entitled, “Policing in the 21st Century.”

Agenda

Abstracts

Under-Policing
I. Bennett Capers

The corollary to the issue of the over-policing of minority communities and mass incarceration along lines of race is the issue of the under-policing of majority communities. Usually, such disparate policing is alluded to in the context of marijuana use–whites and blacks use drugs at the same rate, but blacks are much more likely to be arrested. I’m interested in exploring the under-policing of non-minorities in contexts that for the most part are invisible and under-discussed, such as misdemeanor offenses. By calling attention to conduct that is un-policed in majority communities, we can have a better dialogue about how to address over-policing in minority neighborhoods. Back to Top.

The Free Lunch, Blank Check Problem
Gabriel “Jack” Chin

A key cause of overprosecution is that many actors and agencies have the power to take actions which may benefit themselves, and impose substantial costs, but which are paid for by others. This problem is fueled by a substantial diffusion of authority. That is, in most jurisdictions, no one is “in charge” of the criminal justice system, rather, several agencies have power to initiate prosecutions, a number have the power to arrest, and there are always at least two court systems available. The massive waste in the criminal justice system which now exists would be partially mitigated by restricting the ability of at least partially self-interested governmental entrepreneurs to advance their own interests using other people’s money. Back to Top.

Against Criminalization of Students
Barbara Fedders

In recent years, scholars and activists have documented the causes of and problems created by the so-called school-to-prison pipeline. In response, school districts, police departments, and judges have created policies and procedures to reduce suspensions, decrease school-based arrests, and limit referrals from schools to juvenile and criminal courts. Yet reform efforts remain few in number and narrow in scope.

This Essay argues that the psychology of youth development, the democracy-enhancing purposes of education, and social science documenting the negative impact of school exclusion combine to require a radical rethinking of how we handle in-school misbehavior. Long-term suspensions and prosecution must be reserved for the small number of students who commit serious and violent offenses that genuinely threaten the classroom environment.

My argument includes descriptive, analytical, and prescriptive components. I highlight existing reform efforts. I critique programs that reduce the likelihood of conviction, detention, and incarceration while maintaining law-and-order approaches to in-school misbehavior. Such programs, I argue, merely reconfigure rather than shrink the carceral state. I offer proposals focused on decriminalization and deliberate under-enforcement of existing criminal statutes presently applied to students.  Back to Top.

Predictive Prosecution:  Preliminary Questions
Andrew Guthrie Ferguson

Police in many major metropolitan areas now use predictive policing technologies to identify and deter crime.  Based on algorithmic forecasts from past crime patterns and individual criminal risk factors, police can identify places and persons more likely to be involved in criminal activity.  This data-driven approach impacts police patrols, investigation, and public health-like strategies to disrupt and monitor likely criminal activity.

The early success of predictive policing has led prosecutor’s offices to adopt “predictive prosecution” strategies.   Predictive prosecution involves the identification of suspects deemed most at risk for future serious criminal activity, and then use of that information to shape bail determinations, charging decisions, and sentencing arguments.  The potential problem, however, is that the data used to inform predictive prosecution strategies may be subject to the same vulnerabilities currently impacting predictive policing.  Data can be bad, biased, or based on erroneous correlations.  Algorithmic justice largely fails to promote values of transparency, accountability, and autonomy.  And, while these problems matter when it comes to questions of “where to send a patrol car,” they matter much more when data directly impacts executive decisions about an individual’s liberty.

Fortunately, prosecutors, perhaps more so than police, may have the institutional capacity and legal tools to ensure a more just use of predictive technologies.  Prosecutors, due to their ethic “to do justice” may be in a better position to ensure that issues of accuracy, transparency, validity, error, and exculpatory information are addressed before widespread adoption.  Prosecutors may be able to capitalize on the innovation of predictive analytics and also to promote accountability mechanisms that could benefit the entire system.

This symposium essay sets out the preliminary questions that prosecutors should ask before adopting a predictive prosecution system.  Part I provides a brief overview of the growth of predictive policing and its evolution into predictive prosecution.  While still an experimental concept, certain predictive policing techniques rely on prosecutorial involvement and action.  Primary attention will be focused on one example of predictive policing/prosecution in Chicago, Illinois.   The Chicago Police Department, in conjunction with sociologists and social workers, has developed the “Strategic Subject List” also known as the “heat list” that identifies the 400 individuals most likely to be victims of gun violence or perpetrators of gun violence.  Public health-like intervention strategies are used to contact and monitor those targeted suspects.  Prosecutors become involved in these interventions with the understanding that once identified prosecutors can use this information to shape bail, charging, and sentencing decisions.

Part II looks that at the positive and negative effects of using these predictions in criminal prosecutions.  A public health model of intervention may provide a superior method to deter crime.  From one angle, predictive prosecution is merely strengthening the type of information sharing already done in many prosecutor offices.  However, a punitive-focused public health model may have unintended and quite negative consequences.  If sentencing decisions are ratcheted up because of a suspect was placed on the “heat list,” then prosecutors better be sure that the list is an accurate and valid basis of sentencing enhancement.  This section also looks at the legal obligations of prosecutors relying on predictive models.  While generally consistent with ethical duties and within the broad grant of prosecutorial discretion, using data-driven predictions should not be undertaken without internal accountability mechanisms to ensure the accuracy and validity of the predictions.  In addition, the growing web of shared information may create Brady obligations for prosecutors to turn over exculpatory information.

Part III concludes by arguing that prosecutors may be in the best position to create mechanisms to ensure accountability, transparency, validity, and consistency with due process.  This section raises four questions about accuracy, transparency, error, and fairness that prosecutors must ask before relying on predictive prosecution.  Satisfactory answers to these questions will be the first step in evaluating the usefulness of predictive prosecution.  This brief essay seeks to raise preliminary questions about predictive prosecution, saving for a future day any empirical assessment of its costs, benefits, and promise in practice. Back to Top.

Consolidating Criminal Justice: Should Prosecutors Run the Jails?
Adam M. Gershowitz

Most observers agree that prosecutors hold too much power in the American criminal justice system. Expansive criminal codes offer prosecutors wide discretion to charge defendants with a huge number of offenses. And stiff authorized punishments provide prosecutors with leverage to pressure defendants to plea guilty to lower-level offenses. As a result, prosecutors hold most of the plea bargaining cards. Massive prosecutorial power has resulted in mass imprisonment.

I do not disagree with the conventional wisdom that prosecutors hold too much power. However, absent drastic legislative and judicial change, it will be nearly impossible to substantially reduce prosecutors’ power and discretion. As such, this essay offers a counter-intuitive proposal: we should give prosecutors more, not less, power and responsibility.

This essay argues that states should change their nearly uniform policy of having sheriffs run the jails. Instead, we should place local prosecutors in charge of their local jails. While sheriffs and other law enforcement officials would remain responsible for safety and discipline, prosecutors should be charged with all of the logistical responsibility of checking inmates in and out of the facilities and with handling the overall budgets.

Putting prosecutors in charge of the jails would take a bite out of the “correctional free lunch” in which prosecutors impose sentences but do not have to internalize the financial costs of their decisions. Put simply, prosecutors would have to pay for and live with their misdemeanor charging and sentencing decisions. The experience might also spillover to encourage prosecutors to reduce the sentences they seek in felony cases. Back to Top.

Reducing Incarceration by Addressing Childhood Trauma
Brett A. Loftis

The link between childhood trauma and poor life outcomes is well documented. One of the largest public health studies ever conducted links the prevalence of childhood trauma and adult incarceration, addiction and early death. Read more about the groundbreaking research from the Centers for Disease Control (CDC) and Kaiser Permanente (Adverse Childhood Experiences Study – ACES) http://www.cdc.gov/violenceprevention/acestudy/

The current public systems for the identification and intervention in child abuse and neglect are woefully underfunded and not designed to help children heal from previous trauma. In fact, as they are currently designed, public child welfare systems often inflict further trauma on children they are charged to protect. Without proper intervention, traumatized children will often find themselves in the adult correction system. In one Department of Justice evaluation, 54% of male inmates and 87% of female inmates spent time in the public foster care system before the age of 18. http://www.bjs.gov/content/pub/press/parip.pr

This sad statistic signals a significant opportunity. In the past few decades, there have been great gains in the area of brain science and the understanding of the impact of childhood trauma on the developing brain. We now know that trauma impacts the very architecture of the brain and is linked poor education outcomes, risk taking behaviors, addiction, and overall poor health. The exciting news is that the elasticity and resilience of the brain allows for healing and mitigation of the effects of the trauma. If children are given exposure to evidence- based trauma informed services, the deleterious effects of trauma can be minimized. This identification of child trauma victims and connection to expert trauma services can reduce future harm and can ultimately reduce rates of incarceration. Reforming child welfare systems and increasing access to trauma informed services should be a leading strategy for the reduction of incarceration. Back to Top.

The Presumption of Incarceration
Mark Rabil

This paper examines the central role that storytelling and myth play in shaping the way that Americans look at the criminal justice system. Author Jonathan Gottschall notes the fundamental role that story plays in man’s life, noting it “teaches us facts about the world; influences our moral logic; and marks us with fears, hopes, and anxieties that alter our behavior, perhaps even our personalities…story is constantly nibbling and kneading us, shaping our minds without our knowledge or consent. The more deeply we are cast under the story’s spell, the more potent its influence.” It follows that stories about crime and incarceration have the power to shape the ways in which Americans view the criminal justice system, and even to shape its reality. There are several overarching myths about crime which are so deeply-entrenched in the American psyche that they have become indistinguishable from reality. Among the stories we tell about crime are: that people who commit crimes are unsafe (“Three strikes you’re out!”) and should go to prison (“If you do the crime you do the time”); that people charged with crimes are guilty (the 95% guilty plea rate proves the innocent are not falsely charge in the U.S. criminal justice system, “the best in the world”); and going to prison is a rite of passage for young African-American men just like college for young white men. While the original sources of these myths may be difficult to discern, they are perpetuated by many, including politicians, the news media, television shows, movies, music, books, and anecdotes. As a consequence of this predominant narrative, the presumption of innocence has been replaced by a presumption of incarceration.

However, recent publicity of wrongful convictions and exonerations threatens to disrupt the prevailing paradigm. With the popularity of the Serial podcast; the Netflix documentary, Making a Murderer, and stories of recent exonerations, millions of Americans have been exposed to a counter-narrative which forces us to re-examine our simplistic myth that those who are incarcerated are guilty and must be incarcerated. This article suggests that we have reached a tipping point in the cultural myth surrounding the criminal justice system. By sharing stories of wrongful convictions and exonerations, we can complicate and even change the prevailing narrative about crime and incarceration. By changing the narrative, it is our hope that we can in turn change reality in order to return, once more, to the presumption of innocence. Back to Top.

Promoting Police Accountability and Public Safety: The Hidden Costs of Widespread Implementation of Police Body-Worn Cameras
Kami Simmons

The intersection between aggressive police tactics, racial profiling, and mass incarceration is well-established. It is also well-documented that law enforcement agencies can utilize technology to both promote public safety and police accountability. Thus, many criminal justice experts have called for specific technologies to achieve these twin goals. Notably, the federal government has earmarked over $70 million for local police departments to acquire police-worn body cameras and to provide training to police officers regarding the proper use of these devices.

The increased use of body cameras has several benefits for both citizens and police. For example, footage from the cameras can serve as documentation of police misconduct, and can also serve to invalidate frivolous claims by citizens. Several early studies have shown that officers wearing the cameras are less likely to engage in misconduct. Footage can also serve as valuable training tools for individual officers and for the department as a whole.

However, despite these benefits, widespread implementation of police-worn body cameras is likely to lead to increased surveillance of poor, urban majority-minority communities.  The increased use of body cameras and other technologies to keep police accountable gives way to an interesting tension between the need to monitor police officers and the privacy interests of the citizens in these vulnerable neighborhoods. While it is well-established that urban communities enjoy less privacy for a number of reasons, new technologies exacerbate these tensions and may undermine the ability of create the police-community partnerships that are crucial to public safety in these communities. This paper will examine these tensions and suggest possible solutions to achieve greater balance between police accountability and privacy. Back to Top.

Principled Policing: Guardians & Warriors
Seth Stoughton

Policing in the United States is in crisis. Public confidence in policing is at the lowest point since the Rodney King beating. A bare majority of Americans still report confidence in the police, and an unprecedented number of people report no or very little confidence in policing. A long history of poor police/community relations in minority and low-income neighborhoods has been exacerbated by egregious acts of misconduct, many of which have been captured on video and shared on social media. Activists, politicians, and officers themselves have called for better training and equipment, from de-escalation training to body-worn camera systems. But while training and equipment can marginally improve policing practices and public perceptions of the profession, and while they may prove to be necessary components of meaningful, long-term reform, they will not be sufficient. At its core, the crisis in policing is the result of the Warrior culture that has come to dominate modern law enforcement. Resolving the crisis, then, requires confronting and changing that culture.

This Article explores the Warrior metaphor, explaining how it has become and why it remains such a powerful and attractive image for the police profession. The Warrior represents honor, duty, and resolve, but those ideals have been corrupted. Today, the Warrior culture contributes to an adversarial approach to policing that has undermined police/community relations, frustrated law enforcement efforts, needlessly endangered officers and civilians alike, and stymied meaningful reform. But the Warrior culture is not inexorable. To solve the problems that the Warrior culture has caused, policing should adopt a procedurally just culture dedicated to protecting civilians from unnecessary indignity and harm, emphasizing communication over commands, cooperation over compliance, and legitimacy over authority. Officers must no longer be Warriors. They must become Guardians. Back to Top.

Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies
Eric Zogry

The late 1990’s witnessed a dramatic change in the perception and policy of juvenile justice in America. Reacting to a sudden increase in juvenile crime many states took a hard line against the perceived threat of “super-predators.” North Carolina exemplified this shift. In February 1998 Governor Jim Hunt’s Commission on Juvenile Crime and Justice provided its Final Report to the General Assembly. The purpose of the Report was to address juvenile crime, which “ha[d] escalated to unacceptable levels,” predicting that “the growth of juvenile crime could be three times higher than that of adults by 2010.” The Report suggested substantial changes to the Juvenile Code, with sixty-one recommendations. The recommendations “call[ed] for accountability,” that “[j]uveniles must be held swiftly and appropriately accountable for delinquent behavior.” The result of the recommendations was a Juvenile Code which focused on punishment rather than prevention, accountability rather than adolescent development.

The juvenile crime wave never happened. In fact the exact opposite occurred: juvenile crime in North Carolina began to decline in 1997 and dropped 38% between 2005 and 2014. While there is no clear explanation for the decline in the crime rate, what is unfortunately certain is that overrepresentation of black youth has not improved as a result of the recommendations. In addition, the risk of re-arrest is particularly high for black youth adjudicated in delinquency court.

Did the “get tough” approach of the recommendations and subsequent Code changes contribute to this problem? This paper will consider the work of the Commission, its recommendations, the eventual Code changes and how an apparent lack of consideration of the impact of this philosophy on black youth has resulted in continued overrepresentation and high recidivism rates. Based on a review of the most recent code reform and the possible impacts on disparity, consideration of other law reform will be made to prevent exposure to the justice system and seek potential relief for black youth tangled in the system. Back to Top.

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