Notes for the Negative on Criminal Justice Reform

… because the bird was a ring-billed seagull, kicking or harming it is also a federal offense. Though they’re ubiquitous in parking lots and beaches throughout Southeastern North Carolina, the seagulls are protected under the federal Migratory Bird Treaty Act – meaning it’s illegal to hunt, take, capture or kill them, among other things.

“Most people don’t realize this because seagulls are so common and there are so many of them,” Mason said. “But they are still considered a migratory species, even though the ones here in Wilmington don’t migrate. There are laws in place, still. It doesn’t matter how common they are.”

Proposals for federal courts to change their system of dealing with environmental regulations made into federal crimes is discussed in “Ham Sandwich Nation: Due Process When Everything Is a Crime.”

Moving from federal “eco-crimes” to crimes against people and property

Separate from cases that try to address federal regulatory overcriminalization, are cases that look at federal courts and the traditional crimes against people and property, and the sources of overcrowded prisons. Two previous posts looked at reforming pretrial detention and plea-bargaining. Another post looked at shifting focus to victim justice from criminal justice.

Two recent articles provide thoughtful analysis for debaters on the negative against a range of other criminal justice reform proposals. A Summer 2015 City Journal article, “Did Mass Incarceration Destroy the Black Family?  No, and here’s why” counters claims that having so many black men behind bars is a central cause disrupting African-American families. The article suggests that though many factors are involved, the data shows that the increase in single-parent families from the 1960s to 1980s preceded the dramatic increase in black males in prison, which starts up in the 1980s

A February 6, 2015 Slate interview, “Why Are So Many Americans in Prison?” looks at other popular beliefs about prison populations, and why they are incorrect or at least misleading. Most agree there are too many people in U.S. prisons, but scholars and pundits disagree about why. I recommend the article, and, of course, further research on its analysis and claims. The article notes:

Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes.

However:

… according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place.*

John Pfaff argues that drug laws aren’t so much the main cause:

The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes.

The article looks at various believes about over-incarceration and compares claims to evidence. In the end, Pfaff argued the main shift has been in the behavior of state prosecutors:

What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges.  

These are also the years the police, prosecutor, and courtroom television show Law and Order surged in popularity, followed by the CSI series (Crime Scene Investigation). A National Institute of Justice article, “The ‘CSI Effect’: Does It Really Exist?” looks at possible connections:

The next level of distortion of the criminal justice system is the extremely popular “reality-based” crime-fiction television drama. The Law & Order franchise, for example, appears on television several nights a week promoting plots “ripped from the headlines.” It and other television programs pluck an issue suggested by an actual case and weave a story around it.

The article looks mostly at how these television shows influence jurors:

Those ratings translated into this fact: five of the top 10 television programs that week were about scientific evidence in criminal cases. Together, they amassed more than 100 million viewers. …

Many attorneys, judges, and journalists have claimed that watching television programs like CSI has caused jurors to wrongfully acquit guilty defendants when no scientific evidence has been presented. The mass media quickly picked up on these complaints. This so-called effect was promptly dubbed the “CSI effect,” laying much of the blame on the popular television series and its progeny. 

Though the article concludes (based on juror survey results) that Law and Order and CSI are not major negative influences on juror decisions, it might have been more useful to survey prosecutors to see if and how these television shows influences their behavior. The shows are mostly about them, after all, and not so much about juries. And in the today’s criminal justice system juries are rarely involved, since only 5% of cases involve jury trials.

The mystery jump from 1994 to 2008 John Pfaff cites for prosecutors filing felony charges at twice earlier rates might well be the result of watching the heroic police and prosecutors take down the bad guys each week on Law & Order.