The Missing Link in Justice Reform: People
James M. Doyle
Ordinary Americans are virtually absent from roles of power and influence in all of our justice systems. That’s too often overlooked in reform conversations, says TCR’s legal affairs columnist.
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The Crime Report
The first challenge that faces people entering the “Criminal Justice Reform Space” is deciding how to bring their skills to bear quickly—learning where the “value-added” they contribute can be greatest, finding out how to make a difference.

It isn’t surprising that many reformers focus on the yawning gaps in criminal justice data.

It is a glaring problem, and it is a problem everywhere. The U.S. has close to 18,000 police departments, and not one of them generates and compiles the data we need. The defense and prosecution functions in nearly every city are black boxes.

As Amy Bach, the CEO of Measures for Justice, and Jeremy Travis, executive vice-president of criminal justice at Arnold Ventures, argue in their recent essay in The Hill: “We cannot confirm that new policies work without tracking their outcomes. We cannot address racial injustice without data about policing practices, court processes, jail populations, and prison systems.”

Bach and Travis are right when they write that: “Good data serve as a foundation for the larger project of public safety and racial justice. It is a project that Congress cannot ignore.”

The data shortage is an emergency. Our reformers see the problem. Their education and training provide the tools. So, they use them.

Still, the data gap is not our only shortage, or even the only shortage that is present in every justice system in America.

We have a shortage—practically a total absence—of ordinary citizens in roles of power and influence in all of our justice systems. The people most affected by the process have the least power over it.

That’s an emergency that has to be met too.

The two projects aren’t mutually exclusive, but marshaling people can’t be sacrificed to marshaling the data. The data promises progress, but not salvation. It isn’t that reformers should stop what they’re doing; it’s that a vast and diverse array of citizens could be activated and doing justice too.

Restoring The Old Normal

As the COVID pandemic ebbs, officials are beginning to allow a trickle of citizens back into the buildings. The officials’ approach is grudging. Officials like—they treasure—their privacy. It offers unchecked autonomy.

Yes, now the people should come back in, but they should come in a flood. Their presence should be constant and pervasive, and when they can’t be present physically, we should seize the moment and mobilize the streaming capacities we developed during the pandemic to get public eyes onto the criminal processes from remote locations.

Congress should initiate and then support in every way possible, in every jurisdiction, programs that get the people involved.

It should foster jury trials and juror advisory input on diversions and sentences, guarantee citizen participation in a regular practice of all-stakeholders reviews of sentinel events, institute a regular citizen’s role in restorative justice circles, and facilitate panoptic citizen oversight of the crushing daily routines of docket calls, arraignments, and pretrial arm-twisting, through organized court-watching.

And Congress should make it easy for the people at all income levels and in all neighborhoods to participate too: fund childcare, reimburse expenses, support Wi-Fi access, finance realistic per diem compensation.

The people should get to question the officials. The officials should be required to answer.

And “because that’s what we do” can’t stand as answer enough.

The Data Points and The People

Reformers have to understand that the reforms they want to accomplish for the people can only be sustained with the people.

Even if construction of the data-rich edifices that reform advocates like Bach and Travis describe starts tomorrow—and it should—their completion is decades in the future. There is a sense (as I’m sure the reformers know) in which they can never be “complete.”

And any incomplete data-driven regime presents dangers.

The officials who run the place will share their outputs because it’s their processes they want to control. A dire statistical report and a new policy fix might require the officials to rearrange some of their deck chairs. That’s a challenge they know they can handle.

They’ve done it before.

The officials see their jobs as rationing justice, not doing justice. As long as they can satisfy each other, they are satisfied.

There are aspects of the statistical enterprise that the officials find very congenial. The reductionist tendencies of social science are not inimical to the dehumanizing routines of every day’s call of the criminal docket list.

That person over there—”the defendant” or “the offender” or “the victim”—serves us as a data point, but we have to keep in mind that in utilizing that data we’ve reduced someone who is also a husband, father, son, student, patient, bread-winner, care-giver, for all we know, violinist or baseball coach, for that purpose. (Exactly as the officials running their processes would prefer).

One “defendant” we tracked and aggregated was really Kalief Browder, the complex, doomed young man chronicled by Jennifer Gonnerman. That “parent” is his mother, who found his body after his suicide.

And when the disembodied “typical” or “essential” figures are visualized in action, they populate not stories, but “cases.” These “typical” or “characteristic” schema provide linear, sequential, Newtonian, arrangements of causes and effects: of inputs mechanically generating inevitable outputs.

You did “x”, and “y” happened. The new data-driven policy fix means you should do “z”.

But reformers have to realize that any policy “fix” that their numbers generate is always under immediate attack from its environment. Put it in place and “practical drift,” “covert work rules,” and triage commence.

In general, culture eats policy for lunch.

Land your new policy in the impacted and insular culture of a local criminal justice system and that culture will calmly eat your fix and re-establish its familiar equilibrium.

Unless, that is, you have regular people there, empowered to disrupt business-as-usual.

The People and Their Narratives

In the end, we’re not facing an intellectual or technological puzzle that requires only careful analysis of more data for its solution.

This is a matter of power, and of power historically oriented toward racial subordination. Give the officials more numbers and they will use them to ration justice as they see fit.

We can see where that has led. People striving to do justice every day is what we need. Waiting for the quarterly report will leave a lot of people behind.

Statistical efforts construct a vision of how things are, but visions that are built on probabilities attend to rates, not to distributions. (And, after all, you can get the rate exactly right and many distributions wrong.) Statistical pictures do require sorting people, but they do not encourage actually engaging with them.

To reform a criminal justice world currently configured to allow Us/Here to control Them/There, we need more than statistical visions and archetypal schema; we need the disruptive power of narrative. That is something that only returning the life of the system to the people affected most can provide.

Narrative, as Edward Said observed, “Asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change…above all it asserts that the domination of reality by vision is no more than a will to power, a will to truth and interpretation.”

A jury only exists for one case. Citizen jurors are compelled to focus not on the rate (“Are 80 percent guilty, or 70 percent) but on the individual, particular story (“Is this guy one of the 20 percent, or one of the 80 percent?”).

So, declare war on the “trial tax” that coerces people to abandon jury trial rights. Enforce transparency onto the world of winks and nods where plea leverage generated by pretrial detention, mandatory minimums and prosecution “charge stacking” now secretly dominates.

Citizens called to participate in sentinel event reviews of justice system outcomes such as a police shooting, a wrongful conviction, or a “near miss” have no careers or caseloads with which they have to be consistent. They are involved in a process of discovery, not (like the officials) in one of applying what—they think—they already know.

So, mobilize all-stakeholders, forward-looking reviews of events, and bring the people in.

Citizens confronting a restorative justice opportunity necessarily consider the pain of this victim, without muting that experience to balance it against the last victim or the next.

Citizen court watchers (look for example at Silicon Valley De-bug’s page here) shine their light on the daily accommodations, compromises, and simple dehumanizing inattention by which routine official practice erodes any policy-generated gains.

Reform, and Keep Reforming

The issue here is not a zero-sum choice between building a pile of citizens’ anecdotes or a pile of mandarins’ spreadsheets.

But a massive infusion of citizens—as fully empowered actors, not as data points, or token panel members—into the criminal processes is indispensable and it is habitually overlooked in reform conversations.

We need both the compilations and the narratives, and we need to hold them in permanent, productive tension.

If we agree with Joseph Marguiles that people have a right to be treated with dignity, communities have a right to thrive, and government has an obligation to be fair, then we should recognize that active citizen partnership in raising the right questions, challenging the data, monitoring the officials’ drift, and reasserting the power to make all the citizens heard, deserves a place at the top of the agenda.

Our contemporary nightmare world of criminal justice is one that our officials built. We’ll need the people’s help to take it down and rebuild.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.