By: Elder Kirsten John Foy
What Does Criminal Justice Reform Look Like in The Next Decade of The 21st Century?
I submit to you that there are five general areas of focus that we must broaden and deepen our struggle to include over this next decade of Criminal Justice Reform: Stopping the “Regressive Backslide,” “Tech Justice,” “Civil Criminalization,” “Prison Reform,” and “Federal Law Enforcement.”
Many of the struggles to infuse greater justice into the system have turned a corner with respect to policy and public opinion. We now have a majority of Americans who believe that mass incarceration is wrong. We have a majority of Americans that believe that the war on drugs has failed at eliminating both supply and demand. We see that the marijuana legalization movement has made quantum leaps over the past few years to the point where 33 states permit some form or combination of either medical use and/or recreational use. Many more states have moved towards decriminalization of possession and use as a predicate to legalization. In fact, drug use and abuse has now largely become a public health matter as opposed to a strictly criminal justice matter. Judges and prosecutors across the country both progressive as well as conservative are embarrassing alternatives to incarceration for non-violent offenders. States like New York have not only ceased from building new prisons, they have in fact closed many prisons. Some states have institutionalized police accountability by broadening and strengthening prosecutorial pervues and powers. This was done in New York State when Governor Andrew Cuomo instituted Executive Order 147, in July of 2015, empowering the state’s Attorney General to investigate and prosecute police for killings of unarmed citizens.
Notwithstanding these very real successes and this tangible progress there is still much work to be done to transition the criminal justice system from merely a punitive and vengeful system to a restorative rehabilitating system of justice. Since the election of the last president many of the policing reforms have been halted or rolled back to the dismay of many Americans of all political ilks and persuasions. Not only have we seen rollbacks on police reform we have seen a rollback on prison reform by the re-embrace of private prisons, previously delegitimized by President Obama’s administration. Technology has posed serious existential threats to personal liberties and privacy and have created new mechanisms for subversion of constitutional protections, however, conversely, tech innovation offers opportunities to level the playing field, digitize and mechanize Justice.
The criminalization of civil violators is an often overlooked, yet major contributing factor to mass incarceration. It is the rawest manifestation of the criminalization of poverty that we all decry as regressive and inhumane. Prison reform in light of Novel Coronavirus and COVID-19 must emerge as a preeminent and contemporary movement for justice. Finally, with the fascist gestapo-style deployment of federal law enforcement in pursuit of undocumented peoples erodes our national morale, degrades our moral stature, nullifies our foundational creed and deteriorates our economic fabric resulting in a weakened America - morally, politically, socially, culturally and economically.
The last presidential administration took great steps to bring police departments across the nation under consent decrees with the Department of Justice for the unconstitutional and abusive practices that have become so prevalent and commonplace as to present themselves as legitimate policing strategies. Stop, Question and Frisk, militarization of police departments, the scores of killings of unarmed black and brown men and women have all taken center stage in our national discourse, subsequent to the murders of Eric Garner in New York City and Michael Brown in Ferguson, Missouri by respective police departments.
Our most critical priority should be to maintain the gains that we have made prior to this current administration’s regressive policies and roll backs on police reform, which includes accountability, transparency and philosophical reorientation around community policing. We must stop the backslide to policies that promote greater abuse by police officers and departments of people and communities of color. The dehumanization that comes at the hands of law enforcement’s flouting of the Constitution undermines civil society and cripples generations of individuals and communities of color resulting, in many cases, in irreparable social trauma and disenfranchisement. We must continue the push for federal oversight of local
Law enforcement including: demilitarization of police, best practices trainings and standards of accountability for unlawful and immoral violence and abuse at the hands of police. The elimination of “qualified immunity” must be a priority at all levels of government. We cannot have a substantial framework of accountability that indemnifies law enforcement from personal liability for abuse of power and fatal use of force.
Technology has had no less a destabilizing effect on criminal justice and constitutional protections than it has on every other facet of society. From facial recognition software to DNA databases to survaillance technology has blurred the constitutional lines, have posited many real threats to our individual freedoms and created new mechanisms of racial discrimination and disparities in law enforcement. Through the use of flawed facial recognition platforms and technology black and brown people are now faced with the prospect of being unjustly singled out by computers, artificial intelligence and made subject to law enforcement action. Police departments around the country have adopted new protocols for the collection, use and maintenance of DNA samples of individuals of interest to them. The clandestine capture of DNA samples and the subsequent use of those samples to incriminate individuals poses a threat to basic civil rights and liberties that cannot easily be measured nor regulated. The congress must act to sure-up the constitution from technological threats to civil rights and liberties by placing strict controls on the deployment and uses of these cutting edge technologies that are cloaked in mystique and remain an enigma to most lay people.
Technological innovation also presents an opportunity for the development of an entirely new field of advocacy and activism: Tech Justice. Tech Justice is the innovation and application of technologies intended to bring transparency, accountability and fairness to the criminal justice system. Technologies like apps that connect a person being arrested with legal counsel immediately upon their detention, or DNA testing that has been so successfully utilized by groups like The Innocence Project to exonerate innocent people must become institutionalized alongside Miranda rights and other constitutional protections from unjust prosecution.
A subject that has been all but ignored by advocates and activist, writ large, has been civil criminalization. The use of incarnation as a remedy and redress for civil violations has resulted in the incarceration of tens of thousands, if not hundreds of thousands, of people across the country. Not only does this populate our prisons with people not guilty of violence, it cripples individuals’ ability to recompense and make restoration for civil violations and deficiencies. Civil fines, fees and judgements have translated to imprisonment and hamstrung people from meeting the obligations and becoming more productive citizens. It places a scarlet letter on the impoverished and degrades any potential for full restoration. It permanently injures not only the individual in judgement but it injures those to whom recompense is due. We must look to wide spread and institutional elimination of cash bail as a means of adjudication.
Despite all of our focus on police accountability and transparency, judicial reforms and mass decarceration we have not yet built a mass movement focused on prison reform. While we labor to reduce the prison population to a degree where we are only incarcerating the most violent and deviant violators we must have a multidimensional strategy to both bring down the numbers but equally important we must improve the conditions of those people living in our prisons and jails.
The recent Novel CoronaVirus pandemic has accentuated for us the need for prison reform. COVID-19 has amplified the need for reform of prison conditions from housing to healthcare to programmatic services. State after state has failed to provide adequate public health protections and care for millions of people, including tens of thousands of corrections professionals, who are now trapped in COVID-19 incubators. Few to no states have implemented an adequate pandemic or public health crisis response leaving millions conscripted behind concrete and steel to their own deficient devices. Lack of adequate supplies of personal protective equipment for the corrections officer nor the person imprisoned Endangers all populations connected to the prison industrial complex. This is not simply a public policy failure, this is a humanitarian catastrophe in the making. Overall living and working conditions in prisons and jails are inhumane to start with. Good healthcare and personal development programs are a rarity which result in poor personal health and well being outcomes, as a default, for the overwhelming majority of those who are incarcerated. This cannot be allowed to stand. We must siege this opportunity to build a prison reform movement to complement and supplement our decarceration movement. We must fight for federal legislation that prohibits private prisons that contribute to the institutionalization of a permanent underclass of indentured servants and a modern day slave workforce. We must have an eye to amending the 13th Amendment to The Constitution that legalizes “involuntary servitude.”
Lastly, we all now see clearly the importance of national leadership that regards and reverences human rights and dignity as a core fundamental principle. The aggressive, fascist and racist use of federal law enforcement to forcibly deport, potentially, millions of hard working, productive and contributory members of civil society for the crime of wanting a better life for themselves and their families is incongruent with our national ethos and creed, and, our cultural, geopolitical and economic interests. Day after day we see and receive reports of people being ripped from their homes, work places, schools, streets, cars, public transportation, government administrative facilities and yes jails to be pipelined back to their countries of origin. This is being done, in many instances without Regard for social distancing, respect for social standing, economic viability and genealogical connection to America. Families are being torn apart, the workforce of industries are being gutted putting American food independence and security at risk, undermining hospitality and a host of other industries where immigrants make major contributions to the financial health and prosperity of said industries and of the nation as a whole. These policies have been implemented and undergird a racist and xenophobic agenda by the current administration to “Make America White Again.” This assault on our national ethos and attempt to restitch America’s fabric to exclude foriegn born people of color is an affront to the spirit of the Declaration of Independence, the constitution and the sacrifices of millions of people from generations prior who reverenced our creed and promise. We in this new era must broaden our criminal justice reform horizons to bring into view the abuses of the Border Patrol and Immigration and Customs Enforcement or I.C.E.
“Give me your tired, your poor, Your huddled masses yearning to breathe free…” are not just words engraved on the tablet of The Statue of Liberty, those words are the silhouette of America’s Soul and must have life breathed into them regularly, routinely, consistently, aggressively and humanely. Criminal Justice Reform must include those who are criminalized for being born “somewhere else.” “We are better than this,” and it is up to those stewards of justice to broaden our battle fronts to include our borders.
The irony of the last several years Beginning with the murder of Eric Garner and piquing at the death of George Floyd illustrates the paradox that is American Jurisprudence... “Give me your tired, your poor, your huddled masses yearning to breathe free.” Eric and George yearned to breath freely yet we’re suffocated by the very stewards of freedom and justice we pay and appoint to preserve and protect their yearning...