77. Boseley and Glenza, “Medical Experts.”
78. See Richard L. Miller, Drug Warriors and Their Prey (Westport, CT: Praeger, 1996).
79. Ibid. See also Alexander, The New Jim Crow.
80. Harrison Narcotics Tax Act, 1914, text at http://www.druglibrary.org/schaffer/history/e1910/harrisonact.htm.
81. Richard Nixon, “Special Message to the Congress on Drug Abuse Prevention and Control,” June 17, 1971, http://www.presidency.ucsb.edu/ws/?pid3048.
82. Dan Baum, “Legalize It All: How to Win the War on Drugs,” Harper’s, April 2016.
83. Sentencing Project, “Reducing Racial Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers,” 2016.
84. See, for example, National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, DC: National Academies Press, 2014).
85. Latinos are also overrepresented among those imprisoned for personal drug possession, but the data concerning Latino overrepresentation in the criminal justice system are often inaccurate because of inaccurate reporting.
86. U.S. Census Bureau, “Quickfacts,” https://www.census.gov/quickfacts/table/PST045216/00; FBI, “Crime in the United States, 2014,” table 49A, https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014; E. Ann Carson, “Crime in the United States, 2014,” Appendix Tables 4 and 5, Bureau of Justice Statistics, U.S. Department of Justice, 2015.
87. Howard Zehr, “A Needle for the Restorative Justice Compass,” Zehr Institute for Restorative Justice, Eastern Mennonite University, September 28, 2011 (quoting Dorothy Vaandering, “A Faithful Compass: Rethinking the Term Restorative Justice to Find Clarity,” Contemporary Justice Review 14, no. 3 [September 2011]: 307–28).
88. See the website of the Greensboro Truth and Reconciliation Commission, http://www.greensborotrc.org.
89. Alice P. Green, “Begin with a Truth, Justice, Reconciliation Commission,” Albany Times-Union, December 14, 2014.
90. The Center for Law and Justice, “Petition to Governor Andrew Cuomo on Why New York Needs a ‘Truth, Justice and Reconciliation Commission’ to End Mass Incarceration and the Legacy of the New Jim Crow,” 2014.
PART II
Secondary Prevention
7
Transforming Our Responses to Violence
DANIELLE SERED
The United States faces two distinct but interconnected challenges: violence and mass incarceration. Ensuring safety from violence is an urgent and essential responsibility of a society and is core to the promise of justice. Society should protect its constituents from all forms of violence, but in particular it has a responsibility to both prevent and respond to violent crime. The United States has been remiss in fulfilling that responsibility because of its overreliance on incarceration as the primary pathway to address violent crime. Substantially reducing this form of violence will require acknowledging the limitations of prisons as a strategy to deliver safety or justice. And ending mass incarceration in America will require taking on the question of violence.
We cannot incarcerate our way out of violence. That is in part because incarceration is an inadequate and often counterproductive tool to transform those who have committed violence or protect those who have been harmed. It is neither the most effective way to change people nor the most effective way to keep people safe. Its standing in society is based largely on its role in protecting people from violence and those who commit it, but as a violence intervention strategy, it fails to deliver the outcomes all people deserve—at great human and financial cost. Increasingly, this message is being sounded not only by justice reformers but also by crime survivors themselves.
Prison is also limited as a tool because incarceration treats violence as a problem of “dangerous” individuals and not as a problem of social context and history. Most violence is not just a matter of individual pathology—it is created. Poverty drives violence.1 Inequity drives violence.2 Lack of opportunity drives violence.3 Shame and isolation drive violence.4 And like so many conditions known all too well to public health professionals, violence itself drives violence.5
In the United States, many policies have nurtured violence by exacerbating the very conditions in which violence thrives, including poverty, instability, substandard education, and insufficient housing.6 Not only does incarceration fail to interrupt these drivers of violence, it intensifies them—interrupting people’s education, rendering many homeless upon return from prison, limiting their prospects for employment and a living wage, and disrupting the social fabric that is the strongest protection against harm, even in the face of poverty.7
Nearly all poor communities bear the brunt of policy choices that have nurtured violence. In communities of color, the detrimental impact of these policies is amplified by historical and present injustices including colonization, slavery, convict leasing, and redlining.8 These institutions and policies were supported by widespread violence (including lynchings, church burnings, and mob attacks) that was rarely met with punishment and often had the tacit or active sanction of government and police.9 Exacerbating the divestment from, harm to, and underprotection of communities of color has been the concurrent investment in unevenly applied law enforcement—practices rife with disparities, from stop-and-frisk all the way through sentencing and parole. All this has meant that communities of color bear the brunt of the justice system’s failure at strikingly disproportionate rates.10
Mass incarceration also fails to solve the problem of violence because it treats violence as a matter of good versus evil. The reality is far more complicated. Nearly everyone who commits violence has also survived it, and few have gotten formal support to heal.11 Although people’s history of victimization in no way excuses the harm they cause, it does implicate our society for not having addressed their pain earlier. And just as people who commit violence are not exempt from victimization, many survivors of violence have complex lives, imperfect histories, and even criminal convictions.12 But in the same way that it would be wrong to excuse people’s actions simply because they were previously victimized, it is also wrong to ignore someone’s victimization because the person previously broke a law or committed harm in the past. Such a response to violence reinforces the notion that some people deserve to be hurt—the exact thinking about violence that should be uprooted.
Just as we cannot incarcerate our way out of violence, we cannot reform our way out of mass incarceration without taking on the question of violence. The United States sits at the crest of two rising tides. The 2016 presidential campaign brought a resurgence of “law and order” rhetoric and calls for harsher punishment. But at the same time (and in some cases even in the same place), a consensus and growing momentum have emerged to end the nation’s globally unique overreliance on incarceration. This momentum is in response to a rising awareness of the devastating effects of jail and prison on people and communities. It is the product of decades of advocacy and organizing efforts—particularly on the part of those most impacted by the criminal justice system—which have commanded new allies and more energetic support in recent years. In 2016 alone, major strides in criminal justice reform were made, including victories such as Proposition 57 in California and State Questions 780 and 781 in Oklahoma, which stand to dramatically reduce the prison populations in those states.13 Voters elected progressive candidates as local prosecutors and sheriffs in places including Illinois, Florida, Texas, and Arizona—outcomes that would have been unthinkable even five years earlier.14 Although federal policy is influential in setting both law and tone, criminal justice remains largely a state-based and local issue—and often a bipartisan one. So there remains reason to be hopeful.
But there is a problem. As consensus and momentum to end mass incarceration have grown, the current reform narrative, though compelling, has been based on a fallacy: that the United States can achieve large-scale transformative change (that is, reductions of 50 percent or more) by changing re
sponses to nonviolent offenses. That is impossible in a nation where 53 percent of people incarcerated were convicted of violent crimes.15 In New York State, for instance, where some of the country’s most substantial reductions in incarceration for drug offenses have already occurred, reducing by half either the number of people incarcerated for drug crimes or the time they serve would decrease the prison population by only 1 percent by 2021.16 Although these types of reforms are essential, the country will not get anywhere close to reducing the number of people incarcerated by 50 percent—or, better, to 1970s levels—without taking on the issue that most of these campaigns avoid: the question of violence. It is not just a matter of morality and strategy, though it is both of those things. It is a matter of numbers.17
When efforts to reduce the nation’s use of incarceration move beyond a focus on nonviolent crime, they face a wide range of deep-seated and well-known challenges, both political and practical. Such efforts come up against the continued salience of “tough on crime” and “law and order” rhetoric; the limited power of data as a tool to shape public opinion; deep misconceptions about who crime survivors are and what they want; the persistent tentativeness of even forward-thinking elected officials to enter this terrain; and the need to develop capacity to foster and demonstrate solutions that can take its place.
But crossing the line to deal with violence also opens up a range of possibilities not otherwise available—possibilities that will be even more essential in the current political landscape. It allows people to think holistically about the communities profoundly affected by violence and incarceration and not just about small segments of those neighborhoods. It allows people to envision a justice system that is not only smaller but also truly transformed into the vehicle for accountability, safety, and justice that everyone deserves. And it allows people to center the needs of crime survivors in their vision. This last is the dimension this chapter will explore.
Understanding why crime survivors would benefit from an end to mass incarceration begins by grappling honestly with how violence impacts those who experience it.18 Surviving violence can be life-changing. Exposure to trauma can significantly increase a person’s chances of developing a variety of serious health issues ranging from cardiovascular problems to endocrine disease.19 Common responses to traumatic experiences—including flashbacks triggered by sounds or smells, trouble sleeping, a sense of danger even in safe spaces, and panic attacks—can interrupt a student’s education, contribute to disciplinary concerns, and diminish the chance of academic achievement.20 They can similarly affect a person’s ability to function effectively or do one’s best at work, and to obtain and retain a job.21 Further, we know that some people who are harmed and do not get well are more likely to commit violence themselves.22 And of course each of these factors carries not only a human cost but also a financial one. Without effective services and support, these costs can deplete social service systems, including law enforcement, hospitals, and public aid.23 Our set of responses raises the question of whether we would rather help people heal or pay for the cost of their ongoing pain. So far we have largely chosen the latter.
So what helps survivors come through that pain? Despite media portrayals that often emphasize their supposedly crippling irrationality (whether they are portrayed as vengeful or merciful, they are almost never portrayed as rational), survivors often act with enormous practicality, seeking precisely the things that will help them heal. First, they want answers. These answers, when they get them, contribute to a “coherent narrative,” to use a term from the trauma recovery field—a story about what happened and why that the survivor can believe, make sense of, find some meaning in, and live with. Survivors want their voices heard. This desire is consistent with what research and practice teach about the importance of expression in forming a coherent narrative and in having it validated—both core elements of trauma recovery. They want a sense of control relative to what happened to them. Trauma is, most fundamentally, an experience of powerlessness, and experiences that counterbalance that with some degree of power and control, including over the story and the response to the harm they suffered, can contribute substantially to a survivor’s healing process. They want the person to repair the harm as best they possibly can. It is a basic human desire to want what is broken to be fixed, and to want those who broke it to take responsibility for that repair however possible. Survivors who experience that repair are greatly aided in their healing processes. They want something of use to come from their pain. Our experience of being harmed is often one that isolates us, and we reconnect to the community from which the violence separated us in part by caring for and seeking the safety of others like us. Survivors know that harm done to them may be partially repaired, but it will never be fully undone. So many survivors seek meaning, power, and peace in the notion that the violence they survived could somehow be a force to protect others from the same pain. That impulse to make meaning is also supported in the literature about trauma recovery as a fundamental and useful element of coming through harm. Finally—and most essentially—they don’t want the person to hurt them or anyone else ever again. If there is one common bottom line for all survivors, it is safety—theirs and others’.24
The problem is that our contemporary criminal justice system delivers far too few of these things to far too few survivors of crime, even when it metes out lengthy sentences for those responsible for harm. Most survivors do not report crime, much of reported crime does not result in arrest, many arrests do not result in convictions, and the end results of convictions—including incarceration—too often do not meet most survivors’ needs. Survivors’ voices are almost never heard or heeded in the process.25 While trial may offer an opportunity for some to speak (even as many describe it as retraumatizing), in many jurisdictions across the country as many as 95 percent of convictions are arrived at by plea bargain, not trial, so virtually no survivors see a day in court.26 All too often, survivors’ questions are unanswered, their voices excluded, their input legally not required (with the exception of victim impact statements, which are not demonstrated to have a significant impact on sentencing outcomes), and their preferences frequently disregarded. What is more, the failure of incarceration to deliver public safety—as evidenced in part in the high rates of recidivism among those returning home from prison—runs contrary to survivors’ fundamental need for the person who hurt them not to hurt anyone ever again. Many survivors are left with a set of responses that not only fail to meet many of their basic needs but also can block or supplant the very things that would.
Working with crime survivors, I have come to believe that despite our rhetoric and punitive policies, as a country we have not demonstrated a serious commitment to reducing violence. There are four primary things I believe we would do differently if we actually held that commitment.
First, if we were serious about reducing violence, we would regard the current rates of crime reporting as a moral crisis. In considering survivors’ experience of the criminal justice system, we have to begin with their decision whether or not to engage it at all. From 2006 to 2010, a full 52 percent of violent victimizations in the United States went unreported.27 Even in the cases of most serious violence, reporting rates were strikingly low: 43 percent of violent crime victimizations in which the victim was injured went unreported, as well as 42 percent of cases involving a weapon.28 Even 29 percent of cases involving a serious injury (for example, when the victim was knocked unconscious or sustained a broken bone, a gunshot or stab wound, or internal injuries) went unreported to police.29 The reasons victims give for not reporting to law enforcement include a belief that police could not or would not do anything to help; a belief that the crime—even a violent one—was not important enough to report; or, most common, a decision to handle the victimization another way, such as reporting it to someone else or addressing it privately.30
Even though people’s experience of victimization varies based on their identity and where they live,
these reporting patterns hold across demographic groups.31 What is more, these estimates are widely regarded as understating the issue, as they reflect the participation of only those people reached by (and who decided to engage in) the National Crime Victimization Survey. Those who do not interact with or have access to systems of contact and care—or whose victimization is so minimized that they do not even identify it as such—are not represented in these already strikingly high numbers.
These numbers mean that we are in a nation where every year hundreds of thousands of people who survive violence prefer nothing to everything that the criminal justice system offers. When one considers the short-and long-term consequences of unaddressed violence—ranging from physical and emotional pain for people harmed to cycles of violence that result when harm is unaddressed—these rates point to a practical and moral crisis in addressing the needs of crime survivors as well as a substantial challenge to securing public safety.
Survivors make practical decisions about whether to engage law enforcement based in part on whether they believe that doing so will meet their needs for safety and justice. It has been widely documented and debated that these beliefs are based in part on survivors’ views of the police. But another factor is likely underestimated: survivors’ views of jail and prison. What if the barriers to survivors reporting crime involve a disbelief that the end result of the justice system’s involvement—the incarceration of the person responsible—is right or will work? Thus far, debate about the causes of underreporting has focused almost exclusively on whether victims believe police involvement will make a difference. The discussion has not yet examined the degree to which survivors regard incarceration as an effective means of securing justice and safety. If survivors do not believe that incarcerating people who hurt them will result in greater safety or justice, why would they pick up the phone in the first place?
Decarcerating America Page 18