For the People

by Larry Krasner

  The Franks of the world have their reasons for liking this self-serving narrative of people not changing and its corollary myths—of criminality being constant and distinct from victimhood, of victimhood being constant and distinct from criminality. I say “self-serving” because the narrative implies that even our elected leaders are where they are for a reason. It means their identity as insiders and leaders and their incumbency and ongoing power are based upon their being very good, now and forever, which means their incumbency and power should remain unassailable. The myth never concedes that chance, fortune, and help play a role. People always get what they deserve.

  The rest of us don’t need this myth. But Frank’s kind of insiders do. They need it to make people who might challenge them skeptical of change, even to the point of disbelieving in their own experience, their own joyous evolution. The insiders need the myth to keep outsiders from trying to come inside, so that they can stay in power longer. Frank’s fans need it because they are mediocre—at best—and don’t want the rest of us to know.

  If the world is divided between monsters and saints, that means we need to identify who belongs in which camp. The Franks of the world make it easy for you: They say you can tell the difference between monsters and saints by race, ethnicity, neighborhood, poverty, gender, sexual orientation, politics, criminal record, or some other easy marker.

  Having established who’s who, they then build walls between the camps by pushing the myth’s corollary notions. Push the notion that victims are never perpetrators. Push the notion that perpetrators are never victims. It’s not true, but push it. Push the notion that police and accusers and witnesses are always accurate and always truthful—that only the guilty are charged and convicted. Push the notion that anyone who disagrees with the police or witnesses called by the prosecution is lying even though it’s not true—no group has a monopoly on the truth. Push the notion that the supposedly unchanging nature of criminality calls for an unchanging response that is simple, punitive, and retributive—because people who commit crimes are criminals for life, right? One crime tells us all we need to know about its perpetrator. None of this is true, but they push these fictions to stay on top.

  My saying that people change is not aspirational. It’s fact. Decades after my law school moot court argument, the U.S. Supreme Court decided it’s not okay to execute people who committed murders as juveniles. And then it took another step: The Supreme Court decided it’s not okay to keep them in jail forever, under a mandatory sentence of life without the possibility of parole. Both decisions were based upon psychological research establishing that juveniles’ and young adults’ brains are immature, making them less culpable for their actions but possessed of greater potential for rehabilitation and change due to that mental immaturity. As a result of these two momentous decisions, we are seeing what happens after children who took part in murders are re-sentenced and exit jail. Overwhelmingly, they have changed for the better. People find new selves, or maybe their new selves find them.

  Years before I ran for office, these decisions set into motion an experiment no academic institution would allow: First, human children who have in varying ways been involved in murders are deemed monsters. Very young, they are brought into courtrooms and told by authorities wearing black robes and sitting higher than anyone else that, by execution or by incarceration until their natural deaths, they will die in a prison. They are locked in cages for years or decades, sometimes enduring the blight of sensory deprivation for extended periods in solitary confinement. Then, fairly suddenly and unexpectedly, their fates are revised: All of these people are re-sentenced and many are released due to the U.S. Supreme Court’s opinions. They exit prison at many different ages, from their thirties to their seventies or even eighties. They have completed wildly varying but always lengthy periods of time in custody—nearly all the human subjects of this experiment have served between fifteen and fifty years. And now, suddenly, they are free.

  A separate, unacceptable experiment was set in motion and is going on in parallel. Simultaneously, siblings and lovers and parents and friends of the victims of these crimes are suffering and trying to heal and to bear what is beyond remedy: the death of their child, brother, sister, cousin, parent, colleague, schoolmate, employee, co-worker, friend, spouse, lover. First, these human subjects are told by authority figures, in real courtrooms, that the sentence of life without parole or the sentence of death for this juvenile perpetrator is just and that it is justice—the only type of justice being offered. A decade or many decades later, the survivors who can be found are told there will be a re-sentencing and possibly a release from custody of the convicted perpetrators. More specifically, these survivors are told the U.S. Supreme Court has determined that the life or death sentence they were told was justice was in fact unjust—a violation of the U.S. Constitution. For some survivors, scars are torn open and the bleeding begins again. For others, who have been able to heal more, this news will lead to the questions and conversations and support these survivors need. For some, the idea of their loved one’s killer dying in jail is already inconsistent with their faith, their philosophy, or their progress in healing. They embrace forgiveness and rehabilitation. For every one of these human subjects, these survivors, it’s hard.

  At the end of the experiment we find out what happened to these children, now adults, who were released. We find out whether the people we called monsters have changed. Can people change? We no longer have to guess. There are facts, and those facts are kryptonite for the myth of monsters and saints.

  Nowhere in the world has this experiment been more important than in Philadelphia. Philadelphia is the world’s epicenter for juvenile lifers. Philadelphia has put in jail for life more juveniles convicted of taking part in murders than any other city in America; other countries don’t give juveniles life sentences. As a result, in 2017 Philly remained the most extreme and the largest experiment in the world on what happens when many of them are re-sentenced and leave custody.

  By 2017, I knew that most juvenile lifers had evolved profoundly in jail, shaking off their impulsive and violent tendencies during their first years of incarceration and as they matured. Many had worked thousands of hours in prison jobs that paid pennies per hour. Many had obtained college degrees and credits. Some “old head” juvenile lifers had become the most stabilizing influences in their prisons, mentoring and calming the younger, more recently incarcerated inmates. And mostly these juvenile lifers did these positive things before the Supreme Court changed their fate, with no real hope of freedom, of ever living or dying outside prison walls. Even with nothing to gain and negligible resources to aid in their rehabilitation, they improved.

  In 2017, among those juvenile lifers who had been released, recidivism was so low that it fell below the rate of a random sample of the general population. We will continue to see their progress over time. They don’t need to be safer than everyone else for us to know the vast majority of them have profoundly changed—but the truth is, when I set out to run for office, they were. The truth is, the crimes juvenile lifers committed in childhood were monstrous, but they themselves were not monsters.

  Their being sentenced to death or incarceration for their entire lives on the theory that only death in prison would stop them from killing again or committing other serious crimes was wrong, but only partly because it was factually incorrect. It was also morally wrong: When they committed these acts, they were children. Those death and life sentences reinforced the message that served the people in charge, the myth that people don’t change. Those sentences assumed that killing was in these children’s nature, that their criminality was constant and inherent rather than what it really was for so many of them: temporary and situational. Even so, and in the most damaging of places, the juvenile lifers affirmed that the core of human dignity, our capacity to improve, lives in all of us. They evolved.

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>   The parallel experiment—the survivors’ experience—will be harder to evaluate. Simple metrics, like recidivism, are not available for this group and their process of healing. But for many survivors, their experience will be affected by the outcomes of the main experiment itself—the juvenile lifers who are released. For many survivors, it will matter that the people released overwhelmingly do not kill or commit serious crimes again, especially violent crimes. It will matter that others will not be harmed the way their loved ones were. And for those survivors more wedded to retribution and punishment than they are to the prevention of victimization in the future, it will be hard. Trauma goes deep; profound healing is not universal. Like anyone who is suffering, they will be vocal in ways we can only hope are also helpful to them. Bryan Stevenson was right when he said you’re not the worst thing you ever did. We should add that you’re not the worst thing ever done to you. All victims and survivors deserve their second chance as well, our resources, and our support to try to heal. The fundamental causes of America’s mass incarceration crisis—racism and slavery, profit, politics, a false view of people as unchanging that drives us toward retribution rather than rehabilitation and prevention—are obvious. But the mechanics of mass incarceration are more obscure, especially for those whose professional and lived experiences have not been in America’s criminal justice courthouses.

  I remember sitting onstage one block from City Hall during the campaign, looking out at a thousand people in the pews of the Arch Street Methodist Church during an important and well-attended public forum. The church’s pastor, Robin Hynicka, happened to be an ex-client of mine who was arrested during anti-casino protests in Philly. His progressive church was known for supporting protest against racial injustice, poverty, and anti-immigrant laws. The church hadn’t backed down from a fight with the city over its practice of allowing homeless people to sleep in its basement on freezing nights.

  A few of the most conservative candidates had skipped the forum, sensing that the diverse and casually dressed audience wouldn’t receive their message well. From the stage, I saw a good presence of mainstream and volunteer journalists, who broadcast the event well beyond the pews and gothic stone walls. Community members were lined up at two floor microphones situated in different walkways between rows of pews, alternately asking questions of the candidates.

  Someone asked us to explain in two minutes or less specifically how to combat mass incarceration, which was not much time to answer such a big question. A couple of other candidates answered generally, with one or two ideas. I had been butting up against mass incarceration daily in court, for my entire law career. It was time to talk about it. I quickly scribbled notes on the back of a couple of my campaign business cards, listing ten ways while even more came to mind as my turn came. The mechanics of mass incarceration are like parts of a giant machine that interconnect: a handful of main drivers, each with subparts, that affect and counteract each other. No one person designed this mess. Depending upon how they are adjusted, those drivers can either further incarcerate or decarcerate massive numbers of people relatively quickly. I stood to address the crowd and said I had ten ways to attack mass incarceration, and dropped them one by one with quick explanations of a few seconds each, mindful of the time. Some members of the audience counted them down out loud, correcting me when I lost count. With more time, I could have listed more. Or I could have focused on a smaller group of key drivers of mass incarceration.

  Four in particular stood out and became frequent talking points both that night and as we campaigned, part of our mantra: cash bail, sentencing guidelines and mandatory sentencing laws, mass supervision, and violations of supervision on probation and parole.

  Cash bail, otherwise known as money bail, is what defendants pay to stay out of custody before trial, after they are charged with crimes. Philly, and every other county in Pennsylvania, is a cash bail jurisdiction. Nearly all American jurisdictions are cash bail jurisdictions, with a few notable exceptions such as D.C., Kentucky, and New Jersey.

  Two of the biggest problems with cash bail are these: (1) Poor people who pose no real danger to the community get stuck in jail pre-trial for non-serious offenses. (2) Rich people who pose a real danger to society get out of jail pre-trial for truly serious offenses.

  Cash bail’s rationale has never made much sense. The ostensible premise is that people who have paid cash bail won’t skip court and won’t commit new crimes, while people who don’t pay cash for their release will skip court and become one-person crime waves while their other case is pending. This theory imagines a world where people charged with crimes are wholly rational decisionmakers primarily motivated by money over everything else, including their freedom. That’s nonsense.

  But cash bail’s real function, whether conscious or unconscious, seems to be something else: to create revenue, both for the government and for private companies, while taking freedom from the poor. After the killing of Michael Brown in 2014, a federal investigation revealed that Ferguson, Missouri, relied on dunning its relatively poor and Black residents with tickets and fines to raise a big chunk of its municipal funding, a regressive fundraising tool that punished the poor in the name of criminal justice. Cash bail practices reek of the same kind of kleptocracy.

  Even though, after a criminal case is over, bail money is supposed to be returned to defendants who show up in court, counties come to view the bail funds they are holding as a resource. For nearly all of my career as a criminal defense attorney, Philadelphia took a big bite out of bail money and kept it even when a defendant was found not guilty and never missed court. Other counties view bail money held by the county as a piggy bank for whatever fines, fees, and costs a judge imposes on a defendant at sentencing. The system incentivizes judges to assess fines, fees, and costs more heavily when defendants have more money tied up in bail. And legislators have steadily increased the amount of money government takes from defendants, often making fees and costs mandatory so that judges who believe this dunning is unjust in a particular case are required to impose them, which further incentivizes state and local authorities to support and expand a cash bail system. Those fees and costs generally go to fund the state budget, and in most jurisdictions they keep going up.

  State and local government legislators in many jurisdictions have been corrupted by the steady pressure of private bail industry lobbyists, whose gifts and friends’ campaign donations some legislators enjoy. Prosecutors and judges within the courts can become corrupted by viewing unjust cash bails as leverage to force an eventual guilty plea rather than do the time-consuming work of trying a case. Even the seemingly mundane issue of moving defendants who are in custody between jails and courthouses becomes problematic when too many people are stuck in jail for lack of a few dollars to pay bail on non-serious cases. Having too many people in custody slows the disposition of their cases, and that delay alone forces some guilty pleas when the number of inmates needed in court exceeds the system’s capacity to bring them.

  Cash bail results in the incarceration of the poor for minor crimes while liberating the rich for serious crimes; it is a system that in practice restricts the presumption of innocence to the wealthy. Its effects are devastating on the people most directly involved in the system. For the poor people charged with non-serious offenses, even a temporary inability to pay cash bail can mean stranded and suffering children, suffering or dead pets, and loss of employment and healthcare. And that job loss may mean one fewer taxpayer. For all the other taxpayers, the jailing of the person unable to pay cash bail means a crushing tax bill to pay for that incarceration; the cost sometimes exceeds the cash bail after a single day. For the rich or resourced defendant charged with serious offenses, immediate liberty by cash can enable swift intimidation or retaliation against victims and witnesses who trusted law enforcement and the courts enough to engage them, which degrades and undermines the prosecution of serious criminal cases. These well-res
ourced defendants can return to their criminal enterprises without interruption to endanger people, often including themselves. Consider the following opposite examples of how cash bail systems fail us.

  A young single mother who cleans houses is stopped and arrested for having a couple of ounces of weed in her car. She uses the weed herself, but only buys in ounce amounts to reduce the risk of getting caught. Police and prosecutors incorrectly assume she is a dealer. A moderate amount of cash bail is ordered on the dealing charge that is too much for her to pay. Immediately, she is up against the following: caring for her children, who are with a sitter when she works; caring for her dog at home; informing her next day’s employer that she won’t make it and probably being asked when she can; paying all the bills that are coming in while she is in custody; and facing the trauma of incarceration for the first time—she has no prior record. Within days, she will be up against losing all the cleaning jobs she has with homeowners who employ her and possibly losing custody, at least temporarily, of her children. Who will take her dog and care for it? What will happen when she can’t pay her rent? Later, when she goes to court with a few weeks or a month of separation from her children under her belt, she will want to do anything—including pleading to drug dealing, a crime she did not commit—to get out. And, if she does so, that conviction will forever limit her ability to support herself and provide for her children, improve her education, and obtain housing, among other things. For a broke person who poses no danger, a little bit of bail can be a big injustice.

  A major heroin and cocaine dealer whose drugs are sourced overseas from a cartel is arrested for drug dealing when a shipment involving several kilos is intercepted based on information obtained from an informant. Social media indicates the dealer has access to firearms, although none are found during the drug interception or arrest of the dealer. The prosecutor seeks and a judge imposes what is high bail for any normally resourced person. But the drug dealer and his allies have access to money far in excess of the bail and promptly pay it, gaining his release. From the street, the dealer pursues his suspicions about the identity of the informant and pays an associate to kill the informant, thereby eliminating a potentially crucial witness whose death weakens and may undermine the case. The dealer’s drug operation and the violence surrounding it continue, albeit more cautiously in light of the arrest and in ways that are even harder for law enforcement to detect. For a rich person who poses great danger, even a lot of bail can be too little to do justice: Detention in custody with no ability to pay to get out is what works.