America is precariously perched at a tipping point in history in which strong-arm efforts to reform our criminal justice system seem to be rooted in change for its own sake — and damn the lamentable consequences.
In our country’s early colonies, the concept of right and wrong was rooted in “common law,” based upon the history of previous decisions made by judges. Over time, criminal laws became formally adopted by the various states, as well as the federal government.
Over the past couple of years, the pitfalls of the arguments for change are becoming increasingly apparent, but overzealous reformers have been seemingly tone deaf to criticism or any attempt to measure results. As this ill-fated ship steams ahead toward certain disaster, we are approaching the point at which we must ask whether the advocates for change even care about the results?
Statesman and activist Frederick Douglass is quoted as saying “I would unite with anybody to do right and with nobody to do wrong.” He had the foresight to understand that vision and principle were intertwined in our nation’s quest for a better society.
In recent times we have witnessed many examples of failed bail reform throughout the country. In 2018, Alaska’s state legislature adopted many of the reforms suggested by advocates, but within six months, problems arose. A year after its passage, state lawmakers asked supporters of the changes to explain the dubious results. Backpedaling furiously, the advocates argued that Alaska’s measure of success needed to be changed and that more time was needed. The state responded by rolling back many of the pie-in-the-sky reforms.
More broadly, reformers developed a risk assessment tool which they touted would predict the probability of an individual to reoffend and to not appear for their court dates. They spent millions of dollars to support usage of the tool, providing grants to cities, counties and states in an effort for them to give it a try. However, the tool did not deliver as promised and the results of early research raised questions about its use. Still, reformers held tough.
The bottom fell out in the last year or so. Some of the largest technology companies in the world, including Google, IBM, Apple and Amazon, issued a joint statement saying that risk assessments should not be a part of any criminal justice reform.
The statement declared that the tools had been rushed and not properly studied before being put into use. It added that they were good at predicting what a group would do, but failed at predicting the behavior of an individual. Also, in predicting group behavior, risk assessment tools look at a groups’ demographic and socioeconomic history. Multiple studies confirmed that these racial elements formed an integral component of risk assessment tools, concluding that they should not be any part of criminal justice reform. As recently as the beginning of this year, the Vera Institute supported the use of risk assessments until pulling their support in February.
While all this was going on, New York state’s new bail laws took effect on January 1, adopting many reforms which required certain offenders to be released without bond. Not surprisingly, the effects of the changes were felt immediately with a sharp spike in crime across the state.
The repercussions were so bad that even with the COVID-19 pandemic raging, the New York legislature rolled back many of the reforms. Again, the response from reformers was to ask for patience, claiming that the promised positive results simply required more time.
In Harris County, Texas, reforms have been in place for over a year and have caused such delays that the numbers of pending cases in misdemeanor courts have doubled during that time. In June, a reform group reported to the commissioners court that the state’s criminal justice system was close to collapse. To prevent this occurrence, its advice was to simply dismiss between 12,000 and 18,000 criminal cases. Program Director Thomas Eberly of The Justice Management Institute stated, “I know it’s uncomfortable, but you’ve got to cut your losses.” Eberly argued that doing this would allow the county to deal with the backlog of cases.
The standout element to these disastrous developments is a failure on the part of reformers to perform any kind of critical analysis to determine what works and what has caused the poor results of their reform initiatives.
The most common problem arises from a lack of accountability. The reforms promoted by advocates for change tie the hands of authorities within the system and removes accountability in the process. A defendant who fails to appear for court cannot be punished even though this is a new crime. An individual who has received a PR bond and is arrested on new alleged crimes is released on another PR bond. If one violates deferred probation, no motion to revoke is filed. Similarly, cases are still dismissed even after a failure to attend mandated classes. Each of these actions sends a clear message to the people going through the system that they will not be held to account. Career criminals have taken this as a green light to commit more crime. Throughout the country, signs of this are evident wherever bail reforms have been attempted.
Bail reformers seem committed to criminal justice reform for its own sake without any apparent thought as to the ultimate consequences of their actions. If, as a society, we are truly committed to making improvements to our system of government, then we must do it together. As Frederick Douglass would have admonished, all parties must unite if we are to find effective ways to improve our criminal justice system. Removing accountability and setting up the criminal justice system for collapse are not improvements. Do reformers even care?