How can we stem inequality in our criminal justice system?
The United States continues to grapple with creating an accurate, national picture of racial inequality in crime and justice. Criminal justice reform requires policies that interrogate and solve for the historical legacy of racial exclusion and structural inequalities.
On Tuesday, February 28, the Institutional Antiracism and Accountability Project (IARA) at the Ash Center hosted a discussion with Bruce Western, Bryce Professor of Sociology and Social Justice and Director of the Justice Lab at Columbia University; and Khalil Gibran Muhammad, Ford Foundation Professor of History, Race and Public Policy at Harvard Kennedy School and Director of the Institutional Antiracism and Accountability Project; co-chairs of the recent National Academies of Science publication on “Reducing Racial Inequity in Crime and Justice: Science, Practice, and Policy.” Sandra Susan Smith, Daniel and Florence Guggenheim Professor of Criminal Justice and Faculty Director of the Program in Criminal Justice Policy and Management, provided an introduction.
Read the report: https://nap.nationalacademies.org/catalog/26705/reducing-racial-inequality-in-crime-and-justice-science-practice-and
IARA’s research portfolio focuses on sector-specific interests and critical evaluation of antiracist structures and policies within private, nonprofit, public/government, and academic institutions. By documenting and understanding the field of “diversity” and antiracist training groups, as well as organizations that have sought to engage in antiracist change and the standards by which they have been held accountable, IARA seeks to develop critical measures for establishing antiracist institutional accountability.
To learn more about the IARA Project, visit IARA.hks.harvard.edu.
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Music is Wholesome by Kevin McLeod.
Presenter: You're listening to AshCast, the podcast of the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School.
Sandra Susan Smith:
Good afternoon everyone, and welcome to the convening to acknowledge, celebrate, and learn from the recent National Academy's publication, Reducing Racial Inequality in Crime and Justice, Science Practice and Policy. My name is Sandra Susan Smith and I am director of the Malcolm Wiener Center and Faculty chair of the program in Criminal Justice and very happy to be co-sponsoring this event.
So since the 1970s, the United States has relied heavily on its criminal legal system to address societal problems. Behaviors born from poverty, joblessness, mental illness, substance use disorders, and racial unrest have all been criminalized and punished. Local governments have also enlisted the criminal legal system to generate revenue, balancing municipal and county budgets via the cash registered justice of fines and fees. The result has been a system's massive expansion, budgets and personnel for law enforcement, the courts and corrections mushroom to accommodate a 700% increase in incarceration rate, and a fourfold increase in the number of people on probation and parole.
In 1970, as I'm sure you all know, so forgive me for telling you what you already know, our nation's jails and prisons held fewer than 200,000 people. They now hold over 1.9 million, nearly a fifth of the world's total prisoners, making the US the country with the largest share of its population behind bars. In 1980, probation and parole supervised just shy of 1.5 million. Today, almost 4 million are under such supervision. All told, the criminal legal system now supervises or incarcerates over 4 million more than it did just 40 years ago. And indeed, the carcel net has widened so much that more than half of adults in the US now have an immediate family member who has been to jail of prison. I count myself as one of those folks.
Perhaps most important for our focus today, racial and ethnic disparities exist at every stage of the criminal legal system with Black, indigenous and brown people experiencing policing, arrest, detention, incarceration, community supervision, other sentences hidden from you, and collateral consequences from all of the above at rates substantially higher than white people. With this longstanding issue in mind, in 2020, the Committee on Law and Justice of the National Academies of Science, Engineering and Medicine convened an expert ad hoc committee to review and assess the scientific evidence on how racial disparities in criminal justice might be reduced through public policy. They assembled this awesome committee, the Committee on Reducing Racial Inequality in the Criminal Justice System to carry out this study and produced a consensus report.
The committee renewed and synthesized a diverse body of research from a variety of disciplines, I won't go into those, and it generated public testimony from a variety of community participants in the course of three public workshops. The product of their labors was released last fall. It is an awesome achievement that does an exceptional job, both of synthesizing what we know about the complex roots of racial disparities, but importantly and perhaps in some ways more importantly, the innovations that might help to address this seemingly intractable problem including community-based solutions, non-criminal policy interventions and criminal justice reforms. The volume has already been extraordinarily helpful in my own work and thinking.
This morning, I have the honor of introducing two of the volume's editors. In addition to [inaudible 00:10:45], and Emily [inaudible 00:10:47], we have Khalil Gibran Muhammad. Why do I not know that already? Who as you all know, is the Ford Foundation Professor of History, Race and Public Policy here at The Kennedy School. He directs, well you know, Institutional Anti-Racism and Accountability Project and is the former director of the Schomburg Center for Research and Black Culture Division of the New York Public Library and the world's leading library and archive of global Black history. I have to say that I think the kind of infusion of an historical perspective in this particular volume is what for me made it stand out above other that I've seen of its kind and so I have to credit Khalil for the impact he's had on this particular volume.
Before leading the Schomburg Center, Khalil was an associate professor at Indiana University. Khalil's scholarship examines, as you know, the broad intersection of racism, economic inequality, criminal justice and democracy in the US. He's co-editor of Constructing The Carceral State, a special volume of the Journal of American History and a contributor to a national research council study, The Growth of Incarceration in the United States: Exploring Causes and Consequences, another volume that I rely heavily on in my own work in thinking, is currently co-directing the National Academy of Sciences. Well, this is what we are talking about here.
Sandra Susan Smith:
So Bruce Western is the Bryce Professor of Sociology and Social Justice and Director of the Justice Lab at Columbia University. He studies poverty and socioeconomic inequality with a focus on the US criminal justice system. Current projects include a randomized experiment assessing the effects of criminal justice, fines and fees on misdemeanor defendants in Oklahoma City, and a field study of solitary confinement in Pennsylvania state prisons. Western is also the principle investigator of the Square One Project that aims to reimagine the public policy response to violence under conditions of poverty and racial inequality. He is everything in everywhere. The co-chair of a National Academy of Sciences panel, this panel in particular, he is the author of Homeward: Life in the Year After Prison, an extraordinarily well written text with just really rich and deep insights. I can't recommend it enough if you haven't already read it. And Punishment and Inequality in America. He's a member of the National Academy of the Sciences, the American Academy of Sciences, Arts and Sciences, and the American Academy of Political and Social Sciences.
He's still micing up, so I'm going to read slowly for the rest of this. Western received his PhD in sociology from the University of California Los Angeles and likes to talk about his Australian groups. With that, I will allow you all to get to the stage and mic up before we begin.
Khalil Gibran Muhammad:
Good afternoon everyone. Thank you so much for coming out. Bruce and I both traveled today. I'm a big fan of Newark Airport, if you're ever in a jam. Opposed to LaGuardia. Kept him on the tarmac much longer than I was delayed on my approach here to the great city of Boston.
In any case, it's a real delight to have a chance to talk about this report on our home turf. Some of you may know that Bruce Western spent many years here at Harvard University and the sociology department and in The Kennedy School and also was the chair of the program in criminal justice prior to Professor Smith coming on board. Where did Professor Smith go? Oh, there you are. Thank you so very much for the very warm introduction, and it's great to be able to do this work together across so many disciplines within this complicated space that we occupy.
Bruce and I are going to sort of talk through some of the findings, present some of the key ideas, the ways that this committee set up the report, which I think is novel and a bit unusual. I think it's also just out the star to say that the National Academies, for those who don't know, have very specific ways of establishing knowledge and some limitations as to what a committee can say in a consensus report. This report was complicated in that it was focused very specifically on the very broad context of social policy and criminal legal policy. So I'm going to hand it to Bruce to say hello and then we'll get through the presentation. I'll take the first half. Bruce will take the second half.
Okay. Okay. Well, hello everyone. Thanks so much for the invitation to be here today to talk to you about this report. And thanks so much, Sandra, for the introduction as well. I literally have just sped from Logan to here. Khalil and I have been working on this report with a committee that he'll introduce you to in a minute for the last two years. This was a very protracted process. We met entirely through the Covid period only online. It's great to be able to talk about the report in this context. There's a slide deck that you'll see that National Academy's prepared, and we'll talk about that today. I hope that is just the jumping off point for a discussion of the process, the main findings, the main research recommendations, and where we might go from here.
Khalil Gibran Muhammad:
Awesome. So let's get started. Okay. So as we mentioned-
Should we move to-
Khalil Gibran Muhammad:
Maybe just a little bit.
Khalil Gibran Muhammad:
Although I think they can see those broad outlines.
So as we mentioned, the consensus report includes people who are social scientists or practitioners. And here at Harvard, Robert Sampson, who many of you know in the sociology department, played a huge role in contributing to this report. This is important because the report takes an interdisciplinary approach. So while some might imagine that the economists have a monopoly on what is the most authoritative scientific evidence for making certain claims about what works and what doesn't work, this report took as expansive of you as possible, including the possibility that things that are being piloted show promising possibilities but may not actually bear the same result in all places.
So in general, we emphasize in this report that the criminal justice system is multi-layered and dynamic. And any effort to approach this system from a singular point of contact will likely lead to failure if the effort is to make a scalable and substantial change. And indeed at multiple steps along the way, the consequences of contact within that system worsen based on our findings. So we want to emphasize that the dynamism and the complex relationships between pre-trial detention and police involvement along with sentencing, incarceration, and post-release supervision are all things that operate within both the system itself, but also are feeding and responding to broader problems of social inequalities and structural racism.
So as you know here, criminal justice reform alone is not enough. We'll talk about the way this report is set up. The first half being the kind of diagnostic, meaning how did we get here, which has a huge interest and component of historical forces that we see as direct contributing factors to contemporary problems of structural racism and inequality. And then the second half of the report being a set of a potential intervention, some that exist within the system, some that exist in the realm of social policy.
So racial inequality, as I've suggested already, is cumulative. The effect of procedures, decisions and rules governing the interlocking agencies from police to corrections that comprise the criminal justice system. Of course, what has driven a lot of attention to this topic in more recent years have been the high profile nature of instances of the killings of unarmed citizens and residents of this country. These police stops that lead to lethal use of force are, of course, just a small tip of a much larger iceberg, which contributes to day-to-day contact in communities often that are populated by people of color. Whether or not it is walking or biking or vehicle stops, the relationship of police stops as a significant point of contact within this system is a huge driver of inequality itself.
This is a graphic which helps to at least understand how the committee itself approached the dynamism of this system and the multiple layers that are included here. Things such as stop and search and the use of force, arrest themselves for serious and nonviolent offenses, pretrial detention, which is indeed a specialization for Professor Smith and the work that she's already cited. I encourage those of you here interested in that space. Just to point out in a moment where reform itself is shifting in ways that may suggest stalling, a lot of the research around the importance of bail reform, that is to eliminate cash bail in particular, or to restrict the number of people detained pretrial. That evidence hasn't changed, but the politics have changed around it.
Corrections, of course, is the next layer in this system of dynamic processes where, of course, we recognize the high rates of disproportionate incarceration for Black men, and then finally sentencing where Black people are heavily overrepresented for those serving long terms, as well as the death penalty.
When we look at community supervision, which this report takes a stab at understanding the degree to which community supervision is itself a huge area of racial disparity and racial discretion that we see itself as leading to a lack of accountability and transparency in the system. So probation and population dropped by almost 20% between 2007 and 2019, but as we highlight here, stark racial disparities persist. As parole population has grown, Black persons have remained more than twice as likely to be on parole as other groups. And finally, many probation and parole systems appear to be designed in ways that maximize opportunities for agents or officials with implicit or explicit bias to use discretion in ways that cause disproportionate harm. And again, to come back to an earlier point, noted here by the size of the font at each point, a person who might be directed out of the system but instead treated more leniently or treated more harshly, in other words, the sooner they get out of the system, the less likely we are to see the system itself as a driver of broader inequalities.
I'll talk a little bit about the social drivers of inequality as emphasized in the way in which this report tries to take stock of a broad set of factors, both historical and contemporary, that are contributing to disproportionate crime itself and victimization before we even talk about what the appropriate response should be to that problem in and of itself. I think it's important here to indicate that, again, eliminating various inequalities within the system will not stanch the problem of crime and victimization in communities themselves, which are a legacy and ongoing effect of various structural inequalities and structural racism. This is roughly one angle to understand the way in which wealth disparities themselves, the legacy of concentrated disadvantage, of redlining, of explicit de jure segregation, and the ways in which we have never solved for those particular problems.
So if we are to understand the relationship of housing and segregation as something that many of us study outside of the criminal legal system, segregation and neighborhood poverty are closely associated with local pockets of joblessness, crumbling infrastructure and a shortage of social services. People who live in communities with low wage work, unstable jobs and higher employment had higher homicide and rates of violent crime. A lot of this is not new to people in this room, but a lot of the ways in which the criminal legal system has responded to this, or I should say our state political elites and federal government have been-
Khalil Gibran Muhammad:
... state, political elites and federal government had been to invest in more policing as the mechanism to deliver "public safety." But what we discover or define in chapter three of this report is the degree to which all low income communities experience higher rates of crime and violence. But it is nearly impossible to match the levels of crime and violence associated with Black and Brown communities because there are very few white communities that are as poor or as subjected to various forms of stigma, segregation, and the saturation of the carceral state within those communities. And so you really have an apples to oranges situation in terms of looking at the problems of social and racial inequality that exist even before we talk about what the appropriate response should be. This is in many ways an inversion of the way in which most criminal justice scholars have looked at this in the past. More and more scholars are looking at it this way in the present. But this is a big part of why this report is important.
We look at public health, we also recognize that the degree to which exposure to violence is linked to poor health outcomes amongst people of color from chronic diseases, cancer, stroke, diabetes, asthma related symptoms, as well as PTDS, and depression, the old saying, "violence begets violence," public health researchers recognize as a problem of epidemiology. And given that we have significant evidence and document as such in chapter two of this report, that even exposure to the violence of the criminal legal system is contributing to the problem. And so we want to identify connections and disparities that exist between the mechanisms of violence. And we also want to talk about public health exposure to the toxicity of environmental racism, which we also recognize, particularly lead exposure through research has contributed to disproportionate criminal offending as a result of that.
And finally, the health disparities present among Black, Latino, Native American populations compound the detrimental health effects of having more contact with the justice system. COVID-19 and Bruce worked on a particular report around this, laid bare just how much the intersection of exposure to poor public health infrastructure, ie, the jail or prison itself is a contributing factor to poor health outcomes for those who are experiencing the system. And racial disparities in homicide victims, so disparities among those who are victims of homicide have grown since 2010 with Black Americans, Native Americans, Latinos at higher risk of being homicide victims than whites and others. These disparities grew as homicide rates rose sharply from 2014 to 2016, and again, between 2019 and the present. Murders involving Blacks and Hispanic victims are notably less likely to be cleared by arrest relative to murders involving white victims.
I am not going to read this one because it's more of the same, but just want to lift up the way that the report walks through, how these problems within our social policy arena are contributing factors. And the one thing that I should mention as the historian along with Elizabeth Hinton in this report, is that we recognize as a consensus body, as a committee itself, that history is both a contributing factor to defining such context like segregation, which is a stark reality in the United States presently, the legacy effects and ongoing problems of zoning or mortgage discrimination and other features that the report points to, are here very present. But we also use history, and particularly chapter five of this report, to make light of past reform efforts that we see the limitations of the choices made, particularly by federal officials in pursuing a half-hearted root causes approach to these changes. Because we recognize that the implications of this report are that this is largely making a case for that root causes need to be critical to the approach that we take here.
Having a little bit... Yeah, if you could just put it back on slideshow. And so I did want to mention here that while no one on the committee has expertise in the field of education except one member, Derek Neil in the Congress of the University of Chicago, we recognize that in the broad scheme of things, the school to prison pipeline itself, the use and choice of school resources officers in prison, and certain interventions that we know work but are less prominent in the field of reform, such as Headstart, we see in this report as an important part of the conversation for the scalable change and reform that we believe needs to happen.
And finally, just to illustrate how we graphically think about the relationship between various drivers, from social drivers to public safety and criminal involvement to criminal justice drivers, all working in a kind of villainous feedback loop, the opposite of virtuous. Here, where racial inequality and structural racism are reinforced in this system, as each of these factors continue to feed on each other, given what we know and have documented in this report. And with that, I'm going to turn it over to Bruce. Bruce, do you want this little cheat sheet?
Yeah, sure. We have-
Khalil Gibran Muhammad:
Just tap it for the next one.
Just tap it?
Khalil Gibran Muhammad:
And I'll hit this for you.
With two versions of the slide deck that NAS helped create for us. And this is the one I'm less familiar with. This is like the full one. So the first half of the report, which Khalil just described, documents the research on racial inequalities in crime and criminal justice involvement and the social context for those inequalities. The second half of the report is recommendations. What do we do on the basis of the research evidence to reduce racial inequality? And so that's the piece that I'm going to talk about and we'll see that this discussion is broken up into three parts. There are reforms within the system itself, but as Khalil was saying, by themselves those reforms are not sufficient. We also need to make investments in communities and public space within communities and look at community based sources of safety, and we also need to look at improving material wellbeing in communities. So they're the three big chunks of policy change that the report discusses. So if I just tap this, it advances? Ah, cool.
So what sorts of criminal justice reforms could meaningfully reduce racial inequality? In general, the committee looked at two kinds of reforms. One kind was specifically focused on differential treatment by line officers, line judges in the various stages of criminal processing. So we are thinking about things like in bias training or body-worn cameras, which is a way of increasing police accountability. That's one set of strategies. Another set of strategies involves shrinking the overall footprint of the system itself, reducing the number of police stops, reducing the amount of pretrial detention, particularly through the misdemeanor courts, reducing the scale of imprisonment, particularly through long sentences. And it's through this second policy approach, reducing the footprint, that we find empirically are the largest reductions in absolute racial inequalities, and it's there that we see the greatest promise in the era of criminal justice reform for reducing racial inequality.
The report contains a big survey of a whole variety of different reform efforts. Things we focus on include limiting jail detention, largely through bail reform, as Khalil discussed. Reevaluating long sentences is now a very elderly population in prison, and the prison population has aged significantly as sentences have got longer. If cash bail is replaced, the evidence indicates it should be replaced with an actuarial system that assessors risk in non-biased way, reducing arrest and revocations for people under probation and parole supervision as another way in which the footprint of the system can be reduced. We've passed through a period of two decades now, of very, very substantial reform of drug policy in America. There's more that can be done here. This has, I think, been an enormously successful program of de-carceration over the last 20 years. And more can be done there. And finally, the committee recommends the elimination of the death penalty.
In all of these cases, in all of the research that we review, the scale of criminal justice contact could be reduced very significantly, which has disproportionate effects in communities of color with very little adverse or no adverse effect on public safety.
The committee then turned its attention to the community context of crime, and I think in our understanding of what makes for a safe community, particularly in the social world with context of deeply concentrated poverty associated with racial segregation, we saw significant source of community safety in what sociologists have called collective efficacy. This involves levels of trust among community members to help each other and provide informal social control, bonds of informal social control in communities. That's an important source of safety.
If the community itself is a source of safety rather than police and prisons, then the community is also a point at which public policy intervention can make a real difference. And there's a discussion of how public policy can support community safety in path by building collective efficacy. We saw two really important developments here in the research literature. There's a lot of interest right now in community violence interruptions, CVI, as it's called. That's where community based organizations themselves are involved in deescalating conflict when it becomes likely among that small group of people who are likely to become involved in very serious violence, either as victims or as perpetrators of serious violence. The CVI research literature is still pretty thin, and so we recommend the proliferation of pilot studies that are accompanied by strong evaluation programs.
The second approach involving community investment involves different kinds of investment in public space. And so this is things like greening of the environment, addressing the problem of abandoned lots, improving infrastructure in public space like street lighting and roads. All of these things have been shown to reduce crime. We should view these investments in communities as part of our community safety strategy that doesn't rely on criminal justice contact.
This summarizes basically what I just said. How can we expand the role of the community and community safety to a CVI? We looked at tribal systems of justice, healing circles and other restorative measures, non-retributive, non-punitive measures. And there's a promising research literature around tribal justice systems. The first thing on this slide is expanded systems of community accountability in which police and other criminal justice agencies are accountable to community organizations of different kind. And in the literature we reviewed here, there's strong evidence of reduced use of force and fewer police complaints, fewer complaints against police where strong community accountability measures exist. Some of the most promising research around this is focused also on federal oversight and patent and practice investigations by the Justice Department.
Throughout our investigation of policy recommendations that were grounded in the empirical research, we always try to be guided by four general principles. And I think this provides a framework for thinking about policy recommendations in this area to begin with. First is reckoning and reconciliation. And the idea here is that the consideration of history and an acknowledgement of past harm sets the stage for thinking more ambitiously, more structurally, aspirationally about reducing racial inequality in the project of policy change, participation, accountability and transparency. Some of the most egregious failures, some of the most egregious examples of racial inequality in the criminal justice system involve failures of accountability.
The other side of the coin of expanding accountability involves power sharing, elevating community voice. And we recognize the criminal justice policy is predominantly a local affair, and there's enormous heterogeneity in communities and policy change is not going to look the same everywhere. Every community has its own particular history of racial inequality for which local solutions are important.
Some of this is repeating what I've said. I wonder if we should push it forward?
Khalil Gibran Muhammad:
This being a National Academies report... Oh, this is mine.
Khalil Gibran Muhammad:
Oh, you want to go back?
Yeah. Can we do it?
Khalil Gibran Muhammad:
This being a National Academy's report, of course, we can't finish up without saying something about implications for research. Research has an important role to play in reducing racial inequality. There are a whole variety of ideas here. One is the way in which the federal government supports research in the area of criminal justice policy change. And overwhelmingly and in the history that Khalil described, so much of the strategy of DOJ funding to localities has been really to law enforcement, to police departments and sheriff's offices. And so we encourage the development of grant making mechanisms, and this is starting to happen already to community organizations. If community investment is an important part of the strategy for community safety, then community organization should be built into the structure of federal funding and the research that follows from that funding.
Data collection should be changed. If racial inequality emergence through a multi stage process in which the different stages of the system are interlocking pieces of the puzzle in which inequality emerges as the aggregate consequence, we need a data system that can follow people as they progress through the system. We don't really have that at the moment.
And who are our partners in this process? Instead of this space being who are the partners to researchers in this process, instead of law enforcement and other criminal justice agencies monopolizing this space, communities should be important partners in evidence based efforts to reduce racial inequality.
Where should we go in the future? A big theme of the report is that there's overwhelming focus on Black-white inequalities, but racial inequality is much more complex than that. There are really critical research gaps, particularly around indigenous communities, and this is an area that is really ripe and urgent for expansion. We should study the impact of language accessibility including language barriers for limited English proficient populations limited access to justice. And we need to expand the research around community based alternatives for safety.
Finish up by acknowledging our sponsors that supported this effort. This report was a long time in the making. There have been many National Academies reports on different aspects of criminal justice policy that have delved into the problem of racial inequality to varying degree. This is the first report that focused in a sustained way on assembling all of the research that we have on racial inequality and making recommendations. This was a decades long effort to develop a charge around this topic, and we're very grateful for all of the foundation support that we received.
Khalil Gibran Muhammad:
So the floor's open. We've got at least a half an hour before folks may need to move on to the next class session at 1:15. So feel free to go if that's what you have to do, but we've got plenty of time.
You mentioned in the section about just the impact of the jail system, just the health impacts, and I think that's a little bit counterintuitive to what a lot of people say, especially for the under house and unhoused populations about like, "Oh, at least it's a warm bed and it's food." And so I would love to hear just a little bit more about that particular issue, the issue of health in jail systems, and specifically for people who are already under housed and homeless.
Khalil Gibran Muhammad:
You worked on the airport. I'll let you-
Yeah. I think that there are... So off the bat, as your question suggests that people who are likely to be incarcerated are generally in very poor health, and partly this is diseases of poverty, high rates of disability, asthma, obesity, things like that. Partly it's high rates of infectious disease and partly it's very poor mental health. I think the evidence is very clear. The people are at elevated risk of infectious disease in jail, incarceration. We saw this in COVID where a number of jails just became real hotspots in the early stage of the pandemic, Cook County was like this in Chicago, Rikers Island in New York City, LA County Jail in Los Angeles. That's a situation where there's an airborne pathogen in systems that are very poorly ventilated, people are living in very close quarters. So it's easy to see the mechanism that disease transmission is-
That disease transmission is elevated by the conditions of incarceration. And there's also research around mental health and particularly conditions of isolation, solitary confinement is very damaging for mental health. But as you say, people also have access to correctional healthcare, and courts have decided that there's a constitutional right to healthcare inside, as part of the Eighth Amendment prohibition on cruel and unusual punishment.
And the quality of healthcare inside varies enormously. It's a system that's entirely separate from the rest of the healthcare system in the United States, and it's not subject to any of the oversight that hospitals around the country are subject to. And so, the quality of healthcare varies enormously. So on balance, I think incarceration is risky for health, despite a court established right to healthcare inside. And we really saw this during Covid, where being incarcerated at the early stages of the pandemic, put you at very, very high risk of getting Covid.
Thank you. And thank you so much for the talk, it was so interesting. I was just wondering if there is a fear around localizing a response and what that does if there are uneven resources available to different communities, and how to conceive of the uneven distribution of resources whilst pushing forward a community centered response.
Khalil Gibran Muhammad:
I'll just jump. So it may not be obvious to everyone that just police agencies alone count about 18,000 units of law enforcement across the entire jurisdictions that we call the United States. And constitutionally, there is no mechanism to create accountability in law enforcement, other than a budgetary one, which can be a stick, but mostly it's been a carrot in terms of incentivizing change in law enforcement.
One thing that is nationalized is data collection, and one mechanism of that is the Uniform Crime Report, which has been around for 90 years. This report makes the argument that, even if the federal government invested in better administrative data collection, could systematize even racial categorization, which is both fraught and has impact on how we measure disparities as shifting populations of who's white and who's not, particularly amongst Latino populations, challenges our basic ability to even measure disparity. And this is a problem that will likely grow rather than retreat in the years to come.
So that is both the fatal flaw of the US system of federalism when it comes to a problem of this scale. Federal government certainly play a huge part in creating patterns of likeness in terms of how local communities respond to the criminal justice system, both in the politics of punishment, which our 2014 report talks about, as well as the role that the federal government, through legislation like the crime bill, incentivizing through block grants and the distribution of resources for the hiring of police and the building of prisons. But that being said, it'll be a whole lot harder for the federal system to incentivize a move towards shrinking the scale of the system, because those incentives run counter to the criminal justice system's own bureaucratic incentive structure. Incentive in the same sentence twice, but you get the point. Hand it off to Bruce to add.
Yeah. I think the point's well taken that if the recommendation of the report is that we need to expand community capacity to be the authors of their own safety, for community themselves to be the authors of their own safety, then the poorest communities are going to have the fewest resources for that project. And I think our answer has been federal policy, but we see the social policy levers as really important for the community safety strategy.
So an interesting example at the moment is President Biden's executive order on increasing racial equity. And so, community safety is a multi-agency problem that involves a lot of policy levers outside the justice system, in housing and labor and HHS. And I think in the perspective of the report, all of these social policy agencies should be enlisted in an inter-agency process to provide federal support to more disadvantaged local communities to build community sources of safety. I think your point is right, and that's the strategy that we took to that question.
Yeah. Thank you both for being here, for your research. Professor Mohammed, you mentioned in your third chapter a novel way of looking at the disparity between poor communities of color impacted by policing compared to poor white communities impacted by policing, and how it's almost an apples and oranges comparison based on the ways others have looked at this. Can you speak a little bit more about those differences, and why some of the data that, when you're comparing the issues of police engagement in a poor white community, might not look similar to the findings that you'll find in poor communities of color? And what some of the ways you decided to look at this problem helped you better understand the complexity of that?
Khalil Gibran Muhammad:
Yeah. So one little caveat. The report makes visible a body of research that isn't novel, per se, just not often put in the service of this discussion about what is driving crime in communities and what we ought to do about it. And so, that chapter, chapter three, summarizes or synthesizes the research that makes a fairly straightforward claim based on the evidence, which is that low income communities are more likely to have higher rates of crime and violence, period. And the degree to which the black and brown communities have higher rates of crime and violence is measured and parred by the degree to which their levels of poverty or concentrated disadvantage or ongoing challenges of segregation are, there is no commensurate set of white communities to compare them to. And so, in the national political understanding that often, in popular ways, gets debated as to why these communities are pathologically inclined to so much crime and violence, detaches itself from the evidence and reality that we can measure the higher rates associated with the levels of disadvantage that exist in those communities.
That being said, the goal by making a simple point, that concentrated disadvantage is a driver of crime and victimization in those communities, gets us to the argument about social policy intervention to solve for the problem of concentrated disadvantage, rather than continuing to have more investment in more criminal legal responses. Now, part of the history that informs that chapter is also the history that, one, pathways of economic mobility for white communities came through the federal distribution of mortgage subsidies for working class low income white communities that, a long time ago, had high rates of violence associated with their own forms of concentrated disadvantage. And that history that produced the systemic exclusion of black and brown communities from those very benefits, what we euphemistically describe as, "Redlining," leaves us with a very clear policy choice not to apply social policy to low income black and brown communities over the course of most of the 20th century, and instead to invest more and more in policing in prisons to respond to their levels of low income realities.
Khalil Gibran Muhammad:
Thank you so much. This is very, very insightful. I am an epidemiologist by training, and so I study a lot of these things between incarceration and thinking about health, particularly as it relates to the reproductive health of women. And so I was curious, especially in terms of your recommendations, thinking about the ways in which in carceral states show up in this medicalized way without much oversight, to also be able to do research that really is abstractive in terms of racial advocacy.
Khalil Gibran Muhammad:
[Inaudible 01:03:16], sorry. Just say the last part again.
Oh. I was saying, in terms of thinking about carceral states as domains by which are over medicalized and have very little oversight and are also privatized in this way that they perform hysterectomies, we saw that in ICE Detention Centers, we see that with researchers being able to go into various institutions and do these medical experiments on citizens with very little oversight. And so, I'm curious, in terms of how you're thinking about the intersection of public health, how you see that fuel of, or what the reform situation would look like, in terms of thinking of how prisons themselves are domains by which medical experimentation happens, especially within the context of the National Academy of Science and Medicine.
Yeah. This is a good question and Khalil has devoted a career to investigating versions of this question. I would give us a B minus on this question, and because there are long historical discussions of how police departments, how prison departments, have been harmful to communities of color historically over centuries. There could have been a parallel discussion about the research community and the effects that researchers have had, particularly on people under penal control. And we did not go that far, and that's a real absence in the report.
We did talk about the importance of a different kind of relationship between the research community and local communities in which the criminal justice footprint falls most heavily. And instead of... I think the implication certainly, maybe we say directly in the report too, is that whereas researchers have often had a very cozy relationship with police and DOC and so on, we should develop similar research partnerships with community organizations as well. So I think we're acknowledging the limitations and perhaps the harms of research historically, but we don't do a deep dive. And so, I think I come out as a B minus on this question.
Khalil Gibran Muhammad:
Yeah, yeah. Just to emphasize the point, this is where some of the constraints of the process that we are bound by within the National Academy's protocols limit certain kinds of... One, if the research on the researcher's own failings is not there, except for a few radicals like myself, then it's not going to show up in a report like this. I will say though, this is an opportunity to emphasize, again, a simple framing for this report.
And while you could see this presentation and think, "Oh, well there was no grand thing I didn't already know or hadn't heard of," it is the basic point that to solve the problem you described means fewer people go in this system in the first place, which is a pretty radical departure from the way in which the research community has often tried to fix the system to be more efficient, to be fairer, to be, "More just." But this is where history's helpful in this case, and the research that we did draw upon in this case is, we express a fair amount of skepticism that this system can solve these problems in the absence of limiting the circumstances that drive people to engage in harmful behavior, whether it's person or community based, before law enforcement ever shows up in the first place.
I'm curious to what the research around the... I've got to choose my words wisely. The economic trade-offs to our current system of incarceration, to the policy recommendations that you guys have made around the community based approach and the bail reform. I'm really curious about that, 'cause I feel like that could make this already really compelling research even more compelling.
Yeah. I think if we had a really, particularly through the process of the National Academy's report, so you got 20 people in a room who have to arrive at consensus on a very broad survey of research. I think to have a detailed consideration of trade-offs would need a really detailed understanding of benefits and costs, and we don't quite have that. The research base isn't there, partly for the kinds of reasons that Khalil described.
And so, in the deliberative process of the committee, we took the approach of presenting alternatives. And I think there are some people on the committee who would see community based approaches as having a really great rate of return, and justice reform approaches as not providing the bang for buck, but there are other people on the committee who would have different views. And the way we navigated that, I think, was presenting alternatives. I think it wasn't a bad place to land, I think we do need to know more about CVI, for instance, and other kinds of community investments. Research is developing there, but we've been in a world in which the overwhelming attention of researchers when it comes to crime has been on the question of, "How much do we punish?" That question has dominated the research approach. And I think this report is both trying to extend the research agenda and the manual policy alternatives. I don't know if that's punting a bit on the question, but...
Khalil Gibran Muhammad:
I'll just add a brief coda. The 2014 report on the growth of incarceration and the collateral consequences documented very clearly the harmful effects of this level of incarceration, that really are inconsistent with the very constitutional principles by which the criminal justice system operates. And the question in this report about how to consider possible solutions to reducing the scale of racial equality in the system, defined a set of possible outcomes that cannot meet rigorous research standards as they currently exist. But the question that helped us to see this process through was, "We have lots of evidence of how this system is failing, and yet, by virtue of policy and politics and inertia, a lot of people are okay with that. We have evidence, limited though it may be, of the possibilities for change, and all of a sudden, we have to have the highest standards of evidence before we make a change."
So that is the tension that exists off the page in this report. But it is the one that a skeptic would bring to say, "Well, we don't know enough about community violence interruptions. Show us the evidence." And yet, it's not clear that most police agencies operating on the cover of legitimacy have very much evidence to support what they do. So we can't actually leave it to a single standard of rigorous scientific evidence to get our way out of this, because it wasn't a single standard of scientific evidence that got us into this mess.
Thank you so much. Samantha Lincoln and I teach in the conflict resolution department at UMass Boston. On the radio last night, I learned I make more working entry level at the Department of Corrections [inaudible 01:13:54] in the program, so just a data point for everyone. Thank you so much for sharing this and the ways of thinking about the shifts toward approach, I think, is really, really important to just call out and have.
My question also comes off of this type one, type two error, maybe an economist would love that. But in terms of not knowing enough or not having enough data about community interventions and the efficacy, et cetera. Just going back to the things that it's based on, building trust, basically asking a community that's potentially been victimized over and over again [inaudible 01:14:49] his experience, in a particular a trauma that led to an incarceration or some other kind of issue there.
I think this goes back into the social change. How do you envision that taking place so that, I think one of the biggest questions is, community based initiatives are not a viable option because of the risks that are associated with building community trust that is sustainable, that doesn't lead to basically slip up, more violence. So building up those systems, I think, are really challenging, and I wanted to ask, again, the things that are less able to be defined. How does the report see that? I believe there are fully viable options in addition to the resource question, but then, again, what about these questions of feelings of victimization, of marginalization, of expectation, all of that that, again, really can't measure, at least not right now. Thank you.
Khalil Gibran Muhammad:
Just a couple of quick thoughts. So in chapter six, we take a take on this question. And first of all, what I did not mention at the start is that we had a very robust public engagement process when the committee began its work, that included multiple gatherings of public workshops to hear from a range of stakeholders within the criminal legal system, which included people doing community based work. Some of it in the formal sense of community violence interruption, others of it revolving around restorative justice, particularly amongst indigenous practitioners. We heard from people doing domestic violence work. We talk to survivors of violence, as well as survivors of violence and advocates of change within the criminal legal system. And I say all that to say that the many different stakeholders shared in common a commitment to a basic notion that the criminal legal system consistently fails to deliver what people need to heal, to feel safe, to become more productive and more connected to their communities.
So what this chapter argues for, and what the report recommends, is much more commitment, one, Bruce already mentioned, to testing through piloting things that are already happening in those communities. Two, just a complete reorientation of how the research of this community itself understands how communities should have a voice in defining safety. And then, three, developing research protocols to be able to more effectively measure the heterogeneity which exists within those communities, which is not unified and often does not have consensus, and very demonstrably includes people who believe in more reform.
... includes people who believe in more reform and those who believe in more policing to deliver public safety. So we are mindful that defining community in and of itself is quite difficult. And it's difficult in part because the scientific community has not invested enough in polling and/or finding other instruments to measure those communities.
PART 3 OF 4 ENDS [01:18:04]
Yeah. And I would add, I think the issue of community trust is, and it's run through several of your questions this afternoon, is an enormous challenge. And I think part of the community consultations that we went through in our process is equally a process of trying to build trust and expand voice. And I think who you have around the table in these sorts of processes is enormously important. And there's a risk here that in recommending greater federal investment in community organizations, so there's a whole non-profit industrial complex that is ready to go for those RFPs and solicitations for these community programs. And it's not the kind of community organizations that we're thinking about that are often going to be at the front of that line. I mean, fundamentally, the challenge is a political one in which accountability of all public agencies ultimately resides in the real countervailing power and voice of local community representatives. And I think ultimately, that's where trust comes from is through sharing power in a meaningful way.
Khalil Gibran Muhammad:
One quick add-on to this, a colleague of Bruce's more than mine, although we did communicate once, law Professor named William Stuntz wrote a magnificent book The Collapse of the Criminal Justice System. He passed away as a Harvard Law School professor several years ago. But he made an argument through a historical work, which was that, black people in particular had been subjected to top-down policy making without democratic accountability more so than any other population. So part of what this report recognizes, although this is not mentioned in the report, it is solving for implicitly, is greater accountability among political elites for the actual heterogeneity that exists in a community, which would probably lean more towards reform than has been historically been the case.
By way of antidote, not in the report, when I was working in New York City leading the Schomburg at the time, I was active in city-based reform efforts and served on a two-year committee to focus on gun violence interruption and prevention. And it was obvious, based on who was sitting around the table, that the city of New York had consistently listened to the punitive voice of the black community to justify its policies, in this case of stop-question-and-frisk, against the voices of many more community representatives at this table saying, "We don't need more heavy-handed policing and abuse of policing communities. We need X, Y, Z." So that is partly both the legacy effect of really not paying much attention to what black people want other than when it suits the agenda policy of political elites.
[inaudible 01:22:39] I'm a professor for political science in Paris. I'm here for the term.
Khalil Gibran Muhammad:
And my neighbor, my office neighbor.
Exactly. And I mean since dimension of the American society is one of the most difficult to understand for us coming from Europe, because here there is a real gap between us and the U.S. You insist a lot on the actor, the communities, who could give a solution to the answer or at least push for a better solution to the answer. But on the opposite side, who were and who are the actors who pushed for the state we have now? And who could oppose to the proposals that are included in your report?
Yeah, it's a fundamental question. The history of the emergence of mass incarceration, mass criminalization is told briefly in the report. There's a centuries-long history of racial oppression and marginalization that originates with settler colonialism and slavery in their institutional continuities after reconstruction through Jim Crow. The racial disparities in incarceration grow continuously over a century, through the 20th century, as the modern prison system develops.
So at one level, the answer, a very macro-historical perspective, is the political forces for white supremacy are hugely foundational. In our contemporary politics now around transforming the system, there are strong and organized constituencies within the criminal justice system itself. There's the research that we reviewed is so clear on the resistance of police efforts. External accountability either to the constitution through the justice department or through community oversight has been one of the largest obstacles to transforming policing in America. American police are really organized and are really opposed to efforts to install more meaningful accountability. So at some level, the kinds of changes that we're discussing is taking place against an incredibly-challenging political environment.
I feel we should be careful too in not talking about community as a monolithic, undifferentiated voice. And that's complicated as well. And I hear what Khalil's saying about New York City, but retributive sentiment can be found widely, and that's something that has to be reckoned with in the American political context.
I've already got two final questions lined up. Sorry. Now you're just going to do last question.
So I have a question, really where I just want to hear both of your comments on how you think about crime statistics and the measurement of crime, and especially in communities with concentrated disadvantage. We know so much of crime is unreported and that there's mistrust of police and of government, and we also rely on residents to do the majority of reporting of crime. So I'd love to hear your thoughts on crime stats and their budget.
So we'll ask.
Well, wasn't quite a question that I was expecting.
So we over-index behavior that is criminalized, some of which actually is lawbreaking, some of which is not, like contempt of cop, it's not actually against the law. Meaning expressing one's first amendment rights to protest the presence or inquisition of an officer, who doesn't actually have permission to stop you is not against the law, but it's treated as such. And often results in a disorderly conduct or resisting arrest charge with which then justifies the initial intrusion of privacy in the first place.
So there's a universe of things that show up as an arrest or as some kind of criminal contact or law enforcement contact. Including in the traffic system, we have a long body of research or a huge body of research on pretextual stops, which are at best attempts to identify petty offenses. I mean, I don't know where you're from if you know all of this or not. But the classic offense, for those who don't, would be tinted windows, which is not only infinitely arbitrary because they're not, by definition, against the law up to a certain point of light opacity. But by the book they were never really the problem of politic safety or even traffic safety. This is an opportunity to stop a motorist in an effort to search for contraband.
So we have this artifact of all this activity, and the statistics are the artifact that then drive policy choices, which are self-reinforcing. And the fact that so much of this activity by the state is concentrated in low-income communities of color then just simply reinforces both the stigma and the budgetary decision to do even more of it. And you just get this vicious cycle that plays out.
By the same token, the reverse is also true, where low-income white communities are overwhelmingly non-urban. The state has far fewer resources dedicated to this kind of heavy-handed surveillance and pretextual stopping of those communities. So there's a universe of activity that the state not only is not interested in, aware of, doesn't have the actual infrastructure or capacity to engage in it.
The last thing on this point, which is something that is unusual to most people, our report in chapter two looked at calls for service. And one of the mythologies, popular myths in the black community about the under-reporting of criminal activity or the failure to clear violence in the community is this broken distrustful relationship between members of the black community and law enforcement, which result in non-compliance or participation in criminal investigation. And the report finds that black people are most likely to call for service in the event of criminal victimization across, if I have this right, Bruce, both property and violent crimes across all racial categories. Which defies what the stereotype and populating, which would be snitching stereotype. But also suggests that you have a dual, contradictory problem. You have black people actually calling for help when they're crime victims, when they're actual crime victims, when an actual law has been broken and very low levels of success in solving those crimes. And on the other side of the equation, a lot of police activity for noncriminal offenses to anticipate things that haven't happened yet.
So if I got any of that wrong, Bruce, correct me.
Two quick things I'd want to say is that I do think, and there seems to be strong research consensus around this, that very serious violence, homicides specifically, there seems to be a research consensus that the way we measure it is really tracking something real in communities.
The other thing that I'd say, which is a point on the other side of the coin, but I think violence very often is, at least in a micro-interactional way, expressions, reflections of differences in social power. So violence that happens within households in particular, I think, is tremendously poorly measured, domestic violence, family violence, and completely under responded to by the system. Family violence lives in misdemeanor court and rarely rises to the severity of the felony court.
And another way we see the power context of violence matter, for its measurement or its non measurement, is the harms caused by the system itself. So levels of victimization in prisons, for example, is very difficult to measure, very difficult to gain public access to police use of force. Very difficult to measure, very, very difficult to gain public access
Right. I know. Short question.
It was going to be a two-part question, but I'll make the first part brief.
I didn't hear the word abolition spoken though. What is often a critique is, well, what to replace. It sounded like some of these things that you were talking about in terms of changing the conversation around what does public safety mean and community that sounded along the way. So that was going to be part A, but there's no time for that.
Part B is I'm curious around heterogeneity, places like Massachusetts in the juvenile justice system has seen over the last 20 years, not a 20 or 40, but an 85% decline in the system size. And I'm just curious and often juvenile systems, there's a little more play there to try new things and I'm hoping it's not like we're at the nadir and starting back up. I'm just curious how the research has talked about how you approached some examples. Trying to end on a positive.
Khalil Gibran Muhammad:
I'll take the first part on abolition, and Bruce will bring us home. Way outside the scope of this report so-
They're not ready yet.
Khalil Gibran Muhammad:
As I said from the start, the report is following protocols established by the National Academies and the extent to which one day there will be a more robust social science literature on abolition. It has the extent to which one day we'll see that time show up in a National Academies' report. So I'll leave it at that.
Wow, that's a moderate... Yeah. Detained juvenile populations have shrunk enormously, not just in Massachusetts but nationally as well. And I think it's a major success story. Speaking of abolition, I mean, there's a live movement to close youth prisons around the country. NIJ and OJP is supporting work around that. Well, OJJDP is supporting work around that.
And I'm glad you asked that because I think there were a number of, what I think of as success stories like that, like the reduction in juvenile populations, that we took lessons from in trying to make recommendations. And I think the change in drug policy over the last 20 years and the really substantial reduction in the scale of drug incarceration in state and federal prison is a really major public policy change that I think was part of why we landed on ushering the footprint recommendation, California realignment, big federal court order, decarceration in California. Largest benefits in communities of color is another example, where the footprint was really shrunk substantially. And the end of stop-and-frisk in New York City, where when the footprint was massively reduced and large, absolute benefits were down to communities of color.
And I could get into the weeds of what this might mean for the mechanics of sentencing policy, of pretrial detention and so on. But a 30,000 foot level, it's examples like this, I think, that pointed us in the direction of making the system much, much smaller in order to reduce racial inequality.
Khalil Gibran Muhammad:
Well, I want to thank you all for your being here. And thanks to my good friend, co-chair, Bruce Western, for making the trek up here to be with us today. Hopefully you'll have a couple of other business items to cover while you're here on this snowy day.
And just to remind everyone that the report is available for free download online. So certainly if you haven't done so already, take a look at it and spread it around. It is very useful for people who are trying to make a big change in the system. Thank you.
Presenter: You've been listening to AshCast, the Ash Center for Democratic Governance and Innovation's podcast. If you'd like to learn more, please visit ash.harvard.edu or follow the Ash Center on social media @harvardash.