Criminal Justice

You sit up there, and you see the whole gamut of human nature. Even if the case being argued involves only a little fellow and $50, it involves justice. That's what is important.

-Justice Earl Warren



“In the early to mid- 19th Century, US criminal justice was undergoing massive reform. The state prisons which had emerged out of earlier reform efforts were becoming increasingly crowded, diseased, and dangerous. Consequently, the “Auburn System” was developed in New York at Auburn State Prison and Sing Sing Correctional Facility. The reformers believed the penitentiary could serve as a model for family and education, so sought a system that was more rehabilitative than harshly punitive. Prohibited from talking at all times, prisoners were confined in separate cells at night and then labored together during the day in workshops modeled on the industrial factory. This regimented work routine and enforced silence issued from American Protestant ethics and the increasingly capitalist logic of the emergent nation.


Although this “silent” system was incredibly popular with many reformers across the United States and beyond (de Tocqueville wrote of it in Democracy in America), Pennsylvania had already developed a vying system. The “Pennsylvania System” discounted the industrial factory model of silent labor, emphasizing instead the redemptive and hygienic values of permanent solitary confinement with an artisan labor style. In fact, the Pennsylvania System first inspired the construction and management of Auburn Prison. However, the Auburn System eventually developed several key modifications. Slightly less concerned with the Quaker-inspired principle of non-violence, Auburn embraced a more Puritan ethic of just recompense. Disagreement amongst these reformers about the future of American incarceration was often vociferous and combative. Indeed, “the rivalry between them became one of the defining controversies of the Jacksonian period, through which Americans contested the meaning of citizenship and humanity in the Republic.”

Cornell University Library
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 “In all regions of the United States, however, disfranchisement for crime seems to have been used sparingly before the Civil War. Only those convicted of major crimes lost the right to vote. The number of individuals these laws affected was small because convictions for these serious crimes were rare…

Desperate to stop black voting in order to maintain their racial hierarchies and privileged positions, white southern Democrats would soon turn to legal tools such as literacy tests and poll taxes to limit black suffrage, but the first methods they turned to after the war were existing laws disfranchising for crime.

Arguably, North Carolina was ground zero for these efforts. White Democrats there undertook a campaign of mass whippings of black men. The Atlantic Monthly explained why: “The public whipping of negroes for paltry offences is carried on in North Carolina on a large scale, for the reason that by the laws of that State every man who has been publicly whipped is excluded from the right of voting.”

Pippa Holloway
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 “Companies liked using convicts in part because, unlike free workers, they could be driven by torture. One common form of punishment was “watering” in which a prisoner was strapped down, a funnel forced into his mouth, and water poured in so as to distend the stomach to such a degree that it put pressure on the heart, making the prisoner feel that he was going to die. Another punishment was “stringing up” in which a cord was wrapped around the men’s thumbs, flung over a tree limb, and tightened until the men hung suspended, sometimes for hours. Whipping was common. An Alabama government inspection showed that in a two-week period in 1889, 165 prisoners were flogged. Arkansas didn’t ban the lash until 1967.

Lessees gave a cut of the profits to the states, ensuring that the system would endure. Between 1880 and 1904, Alabama’s profits from leasing state convicts made up 10 percent of the state’s budget. By 1886 the US commissioner of labor reported that, where leasing was practiced, the average revenues were nearly four times the cost of running prisons. Writer George Washington Cable, in an 1885 analysis of convict leasing, wrote the system “springs primarily from the idea that the possession of a convict’s person is an opportunity for the State to make money; that the amount to be made is whatever can be wrung from him…and that, without regard to moral or mortal consequences, the penitentiary whose annual report shows the largest case balance paid into the State’s treasury is the best penitentiary.”

Shane Bauer
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 “The prison industry has become big business: billions of dollars are being spent on new prisons, many of them run for profit by private business concerns. Those billions are not being spent on education, reducing the deficit, cleaning up the environment, or feeding the hungry. A disproportionate number of those behind bars are from minority populations. Brutality and racism — the causes of Attica’s troubles — still thrive in the nation’s prisons.

One can say that because the very conditions that caused the Attica uprising still exist.

In 1971 the predominately nonwhite inmate population in the Attica Correctional Institution faced conditions that were abominable. Corruption was rampant and staff brutality the norm. After promises of reforms were not implemented, a small group of prisoners led an uprising by taking 43 hostages.”

Keith Edgerton
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“In the 1980s, President Ronald Reagan escalated the War on Drugs, which he contended was vital to national security. The White House militarized interdiction programs aimed at reducing the supply of marijuana and cocaine from Central America and promoted “zero tolerance” for narcotics users through the Anti-Drug Abuse Act of 1986.

The Reagan administration also supported the Sentencing Reform Act of 1984, which was enacted with bipartisan support from Republican conservatives like Utah Senator Orrin Hatch, who wanted less judicial leniency, and Democratic liberals like Massachusetts Senator Ted Kennedy, who wanted more racial fairness.

The legislation eliminated indeterminate sentencing for federal crimes and instituted a comprehensive grid of mandatory minimums. Within five years the average time served in federal prisons had doubled and the percentage of offenders who received probation instead of prison had fallen by half…

To demonstrate that he was a “New Democrat” who was not soft on crime, President Bill Clinton warned that "gangs and drugs have taken over our streets" and– sounding like Goldwater, Johnson, and Nixon before him – stated that “the first duty of any government is to keep its citizens safe.”

Accordingly, Clinton signed the largest law enforcement bill in history in 1994. It expanded the number of federal crimes eligible for the death penalty and pumped billions of dollars to the states to hire 100,000 more police officers and build more prisons.

Michael W. Flamm
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“It’s not just that this history fostered a view of black people as presumptively criminal. It also cultivated a tolerance for employing any level of brutality in response…


Inside courtrooms, the problem gets worse. Racial disparities in sentencing are found in almost every crime category. Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses. Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared ‘inevitable.’”

Bryan Stevenson
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Law Enforcement


 “Policing in Colonial America had been very informal, based on a for-profit, privately funded system that employed people part-time. Towns also commonly relied on a “night watch” in which volunteers signed up for a certain day and time, mostly to look out for fellow colonists engaging in prostitution or gambling. (Boston started one in 1636, New York followed in 1658 and Philadelphia created one in 1700.) But that system wasn’t very efficient because the watchmen often slept and drank while on duty, and there were people who were put on watch duty as a form of punishment.

Night-watch officers were supervised by constables, but that wasn’t exactly a highly sought-after job, either. Early policemen “didn’t want to wear badges because these guys had bad reputations to begin with, and they didn’t want to be identified as people that other people didn’t like,” says Potter. When localities tried compulsory service, “if you were rich enough, you paid someone to do it for you — ironically, a criminal or a community thug.”

As the nation grew, however, different regions made use of different policing systems.”

Olivia Waxman
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 “Recent scholarship has shown us that policing is nothing new in the United States. In fact, since the 1970s, we have come to understand that the United States has been long been an incarceration nation. We know that, for instance, styles of policing are rooted in slave patrols that were very common in the antebellum American South. And we know also that policing of racialized groups, for instance, slaves or free blacks in the north dates to the antebellum era, as well...

One thing that the slave patrol patrols bring to mind is the fact that law enforcement or policing has really been historically about controlling labor... In the case of enslaved African American workers, this was about maintaining workforce that was obedient. And this, you know, disciplining them and keeping them in line essentially, and preventing revolts or uprisings. But even later, in the 19th century, during the era of industrialization, policing, and patrolling urban communities was really about controlling urban industrial workers, and maintaining the social order and really protecting the interests of capital. So anyone who was you know, striking or protesting or advocating radical political ideas, was seen as threatening to, you know, an obedient and, and well behaved labor force, and it's threatening to the social order. And of course, maintaining the social order was another aspect of that.”

Marcus Nevius & Lilia Fernandez
Listen to the History Talk Episode on “A Long View of Policing in America” here!

“In the wake of Plessy, white southerners rapidly created the extensive Jim Crow system of laws and customs that locked in and enforced southern racial segregation. And whites used violence and terror to ensure that African Americans adhered to the new status quo.

Indeed, violence was the cornerstone of Jim Crow, much as it had been during slavery. It was used to control black labor and regulate black behavior. It took many forms, from beatings and sexual assaults to wanton murder.

The most dramatic form of violence, though, was lynching. Many of these murders were public spectacles, drawing huge crowds. They also frequently involved local lawmen and civic leaders.”

Hasan Kwame Jeffries
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 “So August Vollmer is kind of, like, a really important figure in the history of policing, right? He starts out as Berkeley's police chief in California in 1905. Then he sort of travels all around the country and really revolutionizes policing. When you hear people say, well, policing is just about protecting the public and it really doesn't have anything to do with race, August Vollmer, who's considered in many ways the father of modern policing - he would disagree with that.”

Chenjerai Kumanyika
Listen to the All Things Considered episode on “The History of Police in Creating Social Order in the U.S.” here!


“I would say if we look at the period of the 1960s in particular, we begin to see the kind of training that comes within a context of - so Lyndon B. Johnson's war on crime - so 1965 onward, the process of militarizing the police. So the training then shifts in a particular direction that's meant to supposedly address issues of urban poverty.

And so even though it's - we can point to various moments in the history, whether in the 19th century or even in the early 20th century, where we begin to talk about policing as a sort of professionalization. But I think in the modern context, the 1960s onward represents a key moment.”

Keisha Bain
Listen to the All Things Considered episode on “The History of Policing and Race in the U.S.” here!


 “And just as state governments implemented policies of massive resistance against school integration, law enforcement bodies resisted reforms to their systems of criminal justice.

In Los Angeles, for example, Police Chief William H. Parker shielded his notoriously brutal and racist police force from court directives to stop their violent witness interrogations and to start using search warrants. Parker railed against “lenient” judges who threw out illegally obtained evidence and campaigned loudly for state laws to circumvent the court rulings…

The first significant legislation on the federal oversight of state and local police is contained in the 1994 Violent Crime Control and Law Enforcement Act, the same legislation that has recently made presidential candidate Hillary Clinton and former President Bill Clinton targets of criticism for the bill’s widening and fortification of the carceral state…

The same legislation, however, authorizes the Department of Justice to step in when a police force seems to engage in a “pattern or practice” that deprives people of constitutional rights. The federal government has conducted wide-ranging investigations of a handful of state police and dozens of local police forces under this law, including Los Angeles, New Orleans, Chicago, New York, Detroit, and Cincinnati.

One former lawyer with the Civil Rights Division recalled that such a law had been “always on the wish list” but only became possible after the Rodney King beating incident in Los Angeles in 1991."

Sarah Brady Siff
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 “When a Simi Valley jury announced the “not guilty” verdicts in the case of four police officers charged in the beating of African American motorist Rodney King to a packed courtroom on April 29, 1992, Los Angeles erupted in a firestorm of anti-police protest. Looting, burning, and violence lasted six days in what became the largest episode of civil unrest in American history.

For many across the country who watched television coverage, the Los Angeles rebellion, as the event has been called by some, exposed the persistent problems of racism, poverty, and inequality in American life…

Reflecting on the 1992 rebellion reveals how the reliance on punitive policies created hostility between the police and inner city residents, fed mass incarceration, and contributed to urban unrest. It demands an interrogation of the ways law enforcement officers and the criminal justice system not only continue to resist efforts to ensure greater accountability and oversight but also how they police the boundaries of equality and full inclusion in American society.”

Max Felker-Kantor
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Crimes & Criminality 


“By [the 1990s] end, the homicide rate plunged 42 percent nationwide. Violent crime decreased by one-third. What turned into a precipitous decline started later in some areas and took longer in others. But it happened everywhere: in each region of the country, in cities large and small, in rural and urban areas alike. In the Northeast, which reaped the largest benefits, the homicide rate was halved. Murders plummeted by 75 percent in New York City alone as the city entered the new millennium.

The trend kept ticking downward from there, more slowly and with some fluctuations, to the present day. By virtually any metric, Americans now live in one of the least violent times in the nation’s history.

But the forces that drove the Great American Crime Decline remain a mystery. Theories abound among sociologists, economists, and political scientists about the causes, with some hypotheses stronger than others. But there’s no real consensus among scholars about what caused one of the largest social shifts in modern American history.”

Matt Ford
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“Public perceptions about crime in the U.S. often don’t align with the data. Opinion surveys regularly find that Americans believe crime is up nationally, even when the data shows it is down. In 18 of 22 Gallup surveys conducted between 1993 and 2018, at least six-in-ten Americans said there was more crime in the U.S. compared with the year before, despite the generally downward trend in national violent and property crime rates during most of that period.”

Pew Research Center
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Violent Crime


 “Crime rates do fluctuate from year to year. In 2020, for example, murder has been up but other crimes are in decline so that the crime rate, overall, is down. And the trend line for violent crime over the last 30 years has been down, not up. The Bureau of Justice Statistics found that the rate of violent crimes per 1,000 Americans age 12 and older plummeted from 80 in 1993 to just 23 in 2018. The country has gotten much, much safer, but, somehow, Americans don’t seem to feel that on a knee-jerk, emotional level.

“The biggest challenge really, and we’re seeing this as a society across the board right now, is that even though our organizations, our businesses, our government entities are becoming more data driven, we as human beings are not,” said Meghan Hollis, a research scholar at the Ronin Institute for Independent Scholarship.”…

None of this has made us safer. And ironically, fear of crime can actually lead to other behaviors that put us at greater risk, like buying and carrying guns. If anxiety about crime keeps Americans from embracing different ways of thinking about criminal justice, that may be doing more harm than good, too. For instance, there’s no real evidence that putting more people behind bars contributed to the decrease in crime or that imprisoning fewer people will raise crime. Instead, a mountain of research points in the opposite direction to problems and inequalities linked to mass incarceration.

The trouble is that fear about crime isn’t rational, and it’s hard to convince people to think differently about a problem that they don’t experience on a day-to-day basis anyway. “You can tell Americans that the crime rate is lower today than it was in the 1990s, but it won’t feel real to them,” said Kevin Wozniak, a sociologist at the University of Massachusetts Boston. “That is, unless politicians stop drumming up the crime rate and people stop hearing about murder every night on the local news.”

And that seems unlikely to happen in 2020.

Maggie Koerth and Amelia Thomson-DeVeaux
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 “While there were fads for cannabis across the nineteenth century, strictly recreational use was not widely known or accepted.

During this period, American druggists were familiar with hashish and other preparations of cannabis, and the marijuana plant had been widely cultivated for the hemp fiber used in rope and ships’ riggings.

But the practice of smoking marijuana leaf in cigarettes or pipes was largely unknown in the United States until it was introduced by Mexican immigrants during the first few decades of the twentieth century. That introduction, in turn, generated a reaction in the U.S., tinged perhaps with anti-Mexican xenophobia.”

Stephen Siff
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“The modern war on drugs, though, with its bulked-up law enforcement and harsh sentencing, wouldn’t come until decades later, in response to a series of drug surges that began in the 1940s. After the end of World War II, Italian and Jewish gangsters, who had switched product lines from booze at the end of Prohibition, reconnected to supplies from the Middle East that had been disrupted by the war. Heroin use surged in American cities among veterans addicted to morphine during the war and young men, disproportionately African American and Latino. Mexican Americans smuggled heroin across a porous border, while Italian organized crime families in New York imported heroin stolen from pharmaceutical companies in Italy and redistributed it across the country.

Municipal, state and federal authorities held public hearings to examine the upsurge in heroin addiction. The faces featured in hearings and in public media were those of white teenagers—the ones most likely to promote alarm about heroin—rather than those of more typical users—young African Americans, whose addiction raised awkward questions about poverty, discrimination, and apartheid-like segregation in American cities. And thus the first drug-induced moral panic swept the public and the government: Congress indulged in a frenzy of legislating, with 26 bills introduced in 1951, fourteen in 1955 and sixteen in 1956. Two—the Boggs Act of 1951 and the Narcotics Control Act of 1956—established the contours for the modern war on drugs: mandatory minimum sentences for drug sellers in the Boggs Act, which the Narcotics Control Act extended to drug users…

Then the drug fight got political. Rapidly rising crime rates during the 1960s provided a perfect opportunity for conservatives looking to fight back after Lyndon B. Johnson’s 1964 landslide victory. Richard Nixon’s “southern strategy” mobilized white voters after the gains of the Civil Rights Movement and merged with panic over skyrocketing crime, civil unrest and drug use in America’s cities. In June 1971, Nixon declared a “War on Drugs.” Drug abuse, he said, was “public enemy number one.” The drug enforcement budget ballooned from $3 million in 1968 to $224 million in 1974; in 1973, Nixon placed the funds into a new Drug Enforcement Administration within the Department of Justice.”

Eric Schneider
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 “Though the size and cost of the DEA is but a fraction of total spending in the War on Drugs, you'd think its utter failure to stop drug use or the global drug trade would've prevented this from happening:

Almost every year the DEA budget and staff are expanded, never mind if the organization is succeeding or failing at its mission. This isn't the DEA's fault. The illicit trade in narcotics is a black market that cannot be eliminated in a free society. But why do legislators continue to increase its size?”

Conor Friedersdorf
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“While Nixon began the modern war on drugs, America has a long history of trying to control the use of certain drugs. Laws passed in the early 20th century attempted to restrict drug production and sales. Some of this history is racially tinged, and, perhaps as a result, the war on drugs has long hit minority communities the hardest.

In response to the failures and unintended consequences, many drug policy experts and historians have called for reforms: a larger focus on rehabilitation, the decriminalization of currently illicit substances, and even the legalization of all drugs.

The question with these policies, as with the drug war more broadly, is whether the risks and costs are worth the benefits. Drug policy is often described as choosing between a bunch of bad or mediocre options, rather than finding the perfect solution. In the case of the war on drugs, the question is whether the very real drawbacks of prohibition — more racially skewed arrests, drug-related violence around the world, and financial costs — are worth the potential gains from outlawing and hopefully depressing drug abuse in the US.”

German Lopez
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Opioid Crisis

 “The latest numbers from the Centers for Disease Control and Prevention show fatalities spiraling up to about 42,000 in 2016, almost double the casualties in 2010 and more than five times the 1999 figures. The White House Council of Economic Advisers recently estimated that the opioid crisis cost the nation half a trillion dollars in 2015, based on deaths, criminal justice expenses and productivity losses. Meanwhile, foster care systems are overflowing with children whose parents can’t care for them, coroners’ offices are overwhelmed with bodies and ambulance services are straining small-town budgets.”

Sally Satel
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“Public health officials, including some who worked on substance abuse and mental health, didn’t fully grasp how much the problem would grow.

Instead, an emerging crisis exploded — metastasizing from overuse of legally prescribed drugs to illicit pill mills and black markets for those drugs, to heroin, a cheaper and sometimes more easily obtainable opioid. Then came fentanyl, a powerful synthetic opioid that has been the driving factor behind overdose spikes in recent years…

Since 2016, Congress has passed three major pieces of legislation to address the crisis and directed more than $6 billion to states. Azar, now at the helm of HHS, has prioritized the issue and touted the administration’s efforts as preliminary CDC data for 2018 shows deaths appear to be slowing though final numbers will be released later this year. Though early reports suggest deaths from prescription opioids are dropping, deaths connected to fentanyl and other drugs including meth and cocaine have risen in recent years.”

Brianna Ehley
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