Nearly 250 years ago, the Founders of this country broke free from a system of government they had known their entire lives, from traditions and norms that were accepted around the world as the way things were and ought to be. A king’s place was to rule, and the place of colonists was to obey.
The Declaration of Independence changed all that, and in so doing, changed the world.
Our country is at a similar point in history today. The horrific murder of George Floyd in Minneapolis echoes the shooting of Crispus Attucks in Boston Common 250 years ago as the catalyst for another revolution. The economic and societal disruption from the COVID-19 pandemic has put our society in a position of thinking about what is essential and what can be put aside, a frame of mind that is conducive to real structural change
What is essential in each area of the existing criminal justice system and what can be moved on from as we grow as a community and a society? What things are important enough to justify applying the criminal justice system and enforcing with the threat of violence and incarceration?
Essential Police Services
There was a time in the popular imagination when police officers were seen as respected, helpful, and trustworthy. Widely publicized abuses like the murder of George Floyd have resulted in serious calls to abolish or defund police departments all around the country, opening up a discussion of what we should be asking police to do and what could be better done by some other agency or service provider, or what could be stopped altogether.
Investigate Property and Violent Crime
Most people would agree that there should be a law enforcement agency that receives calls for service and investigates violent or property crimes. If there has been a homicide or a burglary, having a professional investigation by trained officers makes it more likely that suspects will be apprehended, charged, and prosecuted successfully. Effective investigation of crimes has a deterrent effect.
Reduce or Eliminate Criminal Traffic Enforcement
There would be more time and resources for investigating violent and property crimes if there was less priority put on traffic law enforcement and victimless crimes like drug possession and sex work among consenting adults. As citizens and taxpayers, nobody likes being pulled over by the police for a broken taillight or traveling with the flow of traffic. Technical violations of the traffic code could be handled through safety patrols and mail or electronic notices prior to any contact with law enforcement. Even if we want to enforce traffic laws, there is no requirement that they be enforced through criminal law. Most police officers don’t attend the academy to pull over people for failing to signal a turn or changing lanes without signaling; they became police officers to protect and serve.
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End the Racist War on Drugs
Enforcement of the racist war on drugs has been a complete failure on every metric other than the size of the law enforcement budget and the prison population of the United States. People who want to use drugs still use drugs, but billions of dollars are spent arresting, prosecuting, and caging drug offenders for non-violent drug offenses. Making simple possession the lowest law enforcement priority would reduce the number of police contacts, which reduces tensions between police and the communities they serve.
Get Military Weapons Out of Our Police Departments
Military surplus equipment has no place in our communities and our police departments. There’s no jurisdiction in this country with a rash of improvised explosive devices or mines that would justify the purchase and maintenance of mine-resistant armored personnel carriers, yet the military has sold hundreds of them to law enforcement agencies around the country. Those vehicles and the other weapons of war need to be decommissioned by our police departments and sold to recover some of the misspent dollars so they can be spent on public safety priorities that are more aligned with community values.
Essential Prosecution Services
In the American system of justice, there are no private prosecutions. If a person is accused of a crime, they are prosecuted by a government prosecutor at the local, state, or Federal level. Those prosecutors are sometimes elected, sometimes appointed, but always supposed to do justice without fear or favor.
Look at the Whole Picture
When a prosecutor evaluates a case, she shouldn’t just look at the cold facts in the report, but also try to understand the context of the case in order to seek justice. Justice should be individual, not pulled off of a chart of standard plea dispositions, and should seek to make the community safer in the long term, not just to punish.
Focus on Serious Offenses
Lawyers train for years before they are admitted to the bar. Prosecution jobs are often some of the most competitive for lawyers coming out of law school. Having these sharp legal minds spending their time prosecuting traffic tickets and drug possession offenses take that time away from prosecuting more serious violent and property crimes. Low-level offenses should be diverted away from the criminal system through other programs and specialty courts.
Appoint Independent Prosecutors for Police Accused of Crimes
When a criminal case involves multiple defendants, each defendant must have their own lawyer, since there is a potential conflict of interest between each defendant and their defense strategy. There is a similar conflict of interest when an elected prosecutor’s office is assigned to prosecute a member of a law enforcement agency that they work with on a regular basis. Even if inadvertent, there is an interest in going easy on someone they consider part of the team.
Recognizing this inherent conflict of interest, prosecutors should seek the appointment of a special prosecutor from outside the jurisdiction or even outside the state whenever there is a law enforcement officer charged with a serious criminal offense. This will serve two vital needs, (1) maintaining a good working relationship between the prosecutor’s office and law enforcement agencies and (2) giving community members confidence that a police officer charged with a serious crime will be prosecuted with equal justice as anyone else accused of a serious offense.
Essential Court Services
Having an impartial venue to resolve disputes has been critical in reducing the amount of violence present in human society. When decisions are made by judges and juries based on the law and evidence, people trust the justice system. When decisions are made in a partisan or unbalanced fashion, respect for the law declines.
Allow Victims a Voice of Their Own
Victims of crime have an important voice in the criminal justice system. They should be allowed to tell the prosecution, defense, and the court what outcome they would like to seek justice. In too many jurisdictions, victims are used selectively when they agree with the prosecutor’s position but ignored when they seek mercy or restorative justice.
Let Juries be Informed
Our system allows a jury for criminal offenses. However, in many places, juries don’t know what kind of penalty a guilty verdict might impose on a defendant. Many jurors have had the horrible experience of delivering a guilty verdict on what they thought was a minor offense, only to find out that it carries a mandatory 20-year prison sentence. Allowing jurors to know the stakes would allow them to provide a more complete verdict.
Implement Restorative Justice
Long prison sentences cost crime victims twice, once because they are unable to make real restitution while in prison, and twice because the victim’s taxes pay to feed and house the person who committed the crime. Restorative justice, where there are programs to help make a victim hole and allow the offender to make amends, is a much better way to handle most criminal offenses.
Essential Corrections Services
Incarceration is the most expensive punishment option in the criminal justice system and should be reserved for serious criminal offenses and sentences should be carefully tailored to reduce recidivism and improve community safety.
Put the Corrections Back into Corrections
The goal of corrections is not just to punish people, but also to help them reintegrate into society so they can once again be part of the community and repay whatever restitution they may have from their criminal conviction. Adding educational and vocational programs in prison that pay a regular wage would put prisoners in a better place to come back into society in a position for success. Community supervision for more offenders also helps them reintegrate into society.
Keep Corrections Unions out of Politics
Allowing correctional unions to engage in lobbying or political campaign support creates a moral hazard that enables the corrections officers to create more work by adding criminal offenses and penalties to the law. This is not to say that correctional officers shouldn’t be allowed to engage in collective bargaining with regard to working conditions, just that they should not be adding more prisoners to the system as an organized group.
End Private Prisons
Nobody should profit from the incarceration of other human beings. The profit motive maximizes output, creating an incentive in the private prison industry to maximize incarceration to support shareholders. If anything, there should be an incentive for having fewer prisoners, not more, especially in the COVID-19 era where being incarcerated in close proximity to other people.
Our country has grown from the founding to this point. Terrible abuses and tragedies have opened up a national dialogue about criminal justice reform that allows for more possibilities than at any prior time in America. We can decide how we proceed from here to empower the next generation to live free of the criminal justice system that has wasted so many lives in the past.
Nicholas Sarwark is Executive Director of the Libertarian Policy Institute. He served as Chair of the Libertarian National Committee from 2014 to 2020, a period of unprecedented growth. Over the last two decades, he has worked as a systems developer for a major non-profit, tried over 30 cases to a jury as a deputy public defender in Colorado, and managed the oldest independent car dealership and loan company in Phoenix. He founded Wedge Squared Strategies in 2019, a strategy, communications, and campaign consulting firm that helps individuals and organizations maximize their impact on the world. Licensed to practice law in Colorado and New Hampshire, he lives in Manchester, New Hampshire with his wife Valerie and their four children where they volunteer to build a better local community.