A Fairer and Better Justice System

In honor of MLK day, today’s focus for the “We’re Better Than This” platform is our nation’s justice system.

I have a song and a quote to set the stage for this prong. The song is a classic, A Change is Gonna Come by Sam Cooke, and the quote from Dr. Martin Luther King, Jr. continues to resonate and inspire us today: “Injustice anywhere is a threat to justice everywhere.”

I use this song and this quote not just to honor Dr. King, which would be a plenty good reason on its own, but to note that our American ideal of justice for all remains a challenging work in progress. We indeed have made a lot of progress over the course of time but there are still glaring racial disparities in our legal system, and low-income and marginalized communities continue to struggle to realize the American promise of equal justice for all.

There is far more to say about the solutions than a short post can accommodate, but there are several things our federal government can do right now to bring us closer to reaching our ideal of justice for all, and really mean for all.

Reducing criminalization: Through the War on Drugs and other often well-intentioned overreaches, we are treating too many personal behaviors as criminal offenses when they are not a threat to the larger community.

That starts with drugs–while there is good reason to go hard after the dangerous thugs and gangs who violently compete to supply illegal drugs, we should be treating individual drug use as a public health issue rather than a criminal offense unless the user poses a real threat to others. This is how we already treat alcohol and other legally available drugs, and now are starting to treat marijuana.

By legalizing and tightly regulating the other recreational drugs we currently treat as criminal, we can tax them and pay for the expanded treatment programs and alternatives that are proven to work instead of putting people into the criminal system who do not pose a threat to anyone but themselves. The added benefit will be to sharply reduce the criminal payoff for the gangs and thugs who pose the primary danger to the community, and in the process enable us to better focus law enforcement resources on these bad actors if they move into other illicit activities.

Limiting jail and detention: While the overcriminalization of drug use certainly plays a big role, it is just one symptom of our overemphasis on incarceration as punishment in our country. Statistics have long shown that we far outpace other countries in incarceration while also seeing much higher rates of violent crime, so something is clearly out of whack here.  

Simply put, we should not jail or detain anyone who is not a danger to the community, a danger to themselves, or who poses a flight risk while facing a serious charge. And each of these three classes of people who meet that criteria should be treated differently, so we are not mixing people being held as dangers to themselves with those who already have been shown to be dangers to others.

This is not to say there should be no penalties for those who break the law and don’t fall into one of these three categories, just that we give more sentencing discretion to judges to make the punishment fit the crime in a more fair and cost-effective manner. I am not naïve that there are many criminals who do pose a danger to our community–that is where we should be focusing our criminal justice resources, and this approach will enable us to do that more efficiently.

Reducing the use of fees and fines: While Ferguson, Missouri became the poster child for excessive fees and fines being imposed in racially and economically unjust ways, they are hardly alone. This is a nationwide problem that fuels both inequality and widespread distrust in our justice system.

Fees and fines should never be imposed as a penalty on people who cannot afford to pay without some alternative means of serving their punishment that does not penalize their economic status. Fees and fines can be a very effective punishment on otherwise nonviolent offenders who have the means to pay (e.g, white collar criminals), but when used indiscriminately they can end up criminalizing poverty and holding otherwise deserving people back from getting a second chance to make a fresh start.

Cash bail can have a similar impact. If we reconsider when we use jail and detention in the first place as suggested above, there will be less need to even worry about bond for people who don’t pose a risk to the community. But for those who do pose that risk to themselves or others or are a flight risk, the answer is to detain them in jail or use alternative forms of detention where we can monitor them, not to let the cash bail system be a way that dangerous criminals with means can get out while others who pose little threat get stuck in jail because they are poor.

Smarter Sentencing and Second Chances: Along with more strategic use of jail, detention, fees, and fines, we can use smarter sentencing that makes greater use of restorative justice and similar programs that better balance the goals of punishment, rehabilitation, redress for the victim(s), and community safety.

In addition, once someone has completed their sentence, the default expectation in most instances should be that they can move on with their lives without the scarlet letter of their prior contact with the criminal justice system hanging over them. There will be some limits on this principle for more serious crimes, but for all others we will give them a much better opportunity to move forward with their lives in a productive manner when they have completed their sentence.

Properly funding the courts and legal aid: The third branch of government too often gets short shrift when it comes to budget time. That is true for both for the court system itself and for the attendant investments like legal aid that are necessary to make the system work fairly and efficiently for everyone. This represents a tiny fraction of the overall federal budget even when fully funded. Given the critical role the third branch plays in our country, which has been on display quite often of late, we need to treat it with the priority it deserves at budget time.

Limiting mandatory arbitration: While most of the focus on justice-related issues focuses on the criminal system, we should not lose sight that the civil and administrative justice systems also play a huge role in our economy and our lives. One of the best ways we can improve those systems is by limiting the use of mandatory arbitration to cases where parties on equal footing have willingly negotiated that option.

So if a credit card company and one of its corporate customers want to agree to mandatory arbitration in a negotiated deal, by all means go ahead. But if the credit card company wants to do that to a consumer customer by burying it in fine print in a contract that the consumer has no real opportunity to negotiate, that should be a no go. If it really is a more efficient solution that is better and more accessible for the consumer, let them decide if they want to do it.

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