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The protests are a reaction to a crisis in the U.S. criminal justice system, which has failed to integrate the community’s voice. Our current law enforcement model marginalizes the public to mere bystanders in almost all aspects of criminal procedure and adjudication. This exclusion is draining public coffers, filling up prisons and creating a continual sense of injustice.
There is a simple solution: Bring communities back into criminal justice by increasing their involvement in bail hearings, bench trials, plea bargains, sentencing hearings and even probation and parole decisions.
In the past 30 years, the public has been almost entirely eliminated from the criminal justice process. Today approximately 95 percent of criminal indictments are disposed of by guilty plea, nearly eradicating the criminal jury trial. The resulting power shift from jury trials to plea and sentencing hearings (and inflexible sentencing systems) has created a justice system in which the public has virtually no input or participation.
The practical elimination of the criminal jury trial means that courts, bureaucrats and prosecutors dispense justice, with little room for the community’s voice. Decisions about life and liberty are being made far from the public eye. The average citizen’s primary understanding of criminal justice is derived from news reports, which recite a terrifying litany of ever-increasing violence and crime, creating great fear and anxiety about crime. This is why punishment continues to increase and prison populations mushroom, although the U.S. has its lowest crime rates in more than 40 years. The U.S. government spends an increasing amount of its budget — $68 billion a year — on criminal justice, but the public is less satisfied than ever.
The flurry of recent protests shows that the public has a strong desire for participation in criminal justice decisions. But there is a vast disconnect between the often remote actions of the criminal justice system and the community’s desire to participate in the criminal justice process.
The people’s right to participate in the law enforcement system is essential to legitimizing the process and ensuring its democratic nature.
There are a variety of ways to return the community to the criminal justice system. These include community bail funds, community policing, state statutes mandating jury review of pleas, community involvement in parole and probation decisions and community-based courts, to name just a few. All these innovations require cooperation between communities and various law enforcement agencies. And the changes need to come at the state and local level, since the vast majority of criminal cases are still adjudicated in state courts.
A community bail fund can be privately or publicly funded. The money would cover bail for low-level offendersto ensure that the accused appear in court for scheduled hearings. The designated sums can then be returned to the payer and allotted to paying for pretrial release of nonviolent offenders. Similarly, community-based courts work with communities to identify problems and help develop solutions. It seeks to enhance public safety and quality of life at the neighborhood level by allowing the community to help control criminal behaviors through social sanctions such as admonitions, shaming, restitution and finally banishment from the community. These partnerships between law enforcement agencies and constituents have been successful in reducing crime and recidivism as well as increasing the community’s satisfaction with the criminal justice system.
Several states — including Virginia, New York, Oregon, Washington, Texas and Wisconsin — have had success with community criminal justice boards, which incorporate the public into probation and parole decisions. These boards (which usually consist of the chief magistrate, the sheriff, the commonwealth’s attorney, the public defender, an educator, an individual representing the board of supervisors and a community services board representatives as well as citizens) work on, among other things, designing services to meet the rehabilitative needs of select offenders and provide them with post-sentencing alternatives to reduce recidivism. This helps integrate offenders back into their communities and enhance public safety. Perhaps equally important, communities feel more invested in the criminal justice system because they have more of a voice in its results.
In 2008 the Red Hook Community Justice Center in Brooklyn in New York City reduced the use of jail time for misdemeanor charges, employing jail time in 11 percent of cases (compared with 17 percent of cases in downtown Brooklyn), and increased the imposition of conditional discharges with alternative sanctions, using that approach in 62 percent of cases (compared with 20 percent downtown). Adult misdemeanor offenders processed through the center were less likely to reoffend, with the recidivism rate going down 10 percent in two years.
Similarly, some municipalities in Wisconsin are incorporating local concerns into standard prosecution through community prosecution projects. In Milwaukee, for example, prosecutors, who are assigned to specific neighborhoods, develop partnerships with neighborhood organizations and work with community members to help reduce crime and unnecessary arrests. The community prosecutor programs communicate regularly with area residents, businesses, associations and community organizations to make each locality safer and a better place to live. This allows community stakeholders to participate in setting the agendas and solutions for fighting local crimes.
Although implementing greater community participation in criminal adjudication might be challenging, it helps create a meaningful change by positively influencing the public’s understanding of criminal justice. Recent events have shown that the public has a strong desire to have more involvement in criminal justice decisions. Ultimately, the people’s right to participate in the law enforcement system — a right that is all too often overlooked — is essential to legitimizing the process and ensuring its democratic nature. Until this happens, “We the people” is just an empty catchphrase plastered over the reality of a retributory and secretive state.
Laura I Appleman is the associate dean of faculty research and a professor of law at Willamette University. She is the author of “Defending the Jury: Crime, Community and the Constitution.”
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