Magazine | December 31, 2014, Issue

Justice of the People, by the People, for the People

Communities should tailor criminal law to suit their needs

One day, police came to Christos and Markela Sourovelis’s North Philadelphia home with a search warrant. After threatening to shoot the family dog, they forced their way in and went upstairs to an adult son’s bedroom, where they found a small amount of drugs and drug paraphernalia. The son, who had no prior record but had sold $40 worth of drugs to an undercover officer outside the home, was arrested and his case was diverted for drug treatment.

But then, a month later, police seized and sealed the family home, ordering everyone to leave. Prosecutors never even alleged, let alone proved, that the Sourovelises had known about their son’s involvement with drugs. When they showed up in Courtroom 478, there was no judge or jury, only a prosecutor. In order to get their house back, they had to come back to court every month for months, agree to waive their innocent-owner defense and their constitutional protection against excessive fines, and agree to bar their son from ever entering the house again.

The Sourovelises are far from alone. The Philadelphia district attorney does the same to hundreds of homeowners and thousands of owners of small sums of cash each year. It uses the money to fund police and prosecutors’ salaries, warping their incentives by encouraging them to go after suspects with money rather than those who deserve punishment the most. And all of this is routinely done by a lone prosecutor, without a judge, jury, or defense lawyer. If juries had to sign off on these forfeitures, they would laugh many of them out of court.

Cases such as these breed strange bedfellows. The Institute for Justice, a free-market libertarian public-interest law firm, has teamed up with Kairys, Rudovsky, Messing & Feinberg, a left-leaning civil-rights firm, to challenge Philadelphia’s forfeiture cash machine. Why the unusual left–right alignment? A wide range of people can agree that government has overreached when it seizes people’s homes and salaries without first convicting them of crimes.

Typically, critics of the criminal-justice process focus on county prosecutors and city or town police. And indeed, formal politics and county and city elections are often dysfunctional. District-attorney races, for instance, far too often focus on (manipulable) conviction rates and (unrepresentative) scandals or sensational but comparatively rare crimes, rather than on meaningful prosecutorial priorities and tradeoffs. Police are even less accountable to the electorate.

What is the right antidote to this lack of oversight? Pushing more power upward, to state or federal authorities? Sometimes. But more often, the right answer might be to push it downward, to local and sub-local oversight by juries and other community members.

When law enforcement goes too far, reformers often have the same reflexive response: look to the federal government. In the Jim Crow and civil-rights eras, racist state and local governments routinely violated minorities’ rights, so civil-rights advocates understandably came to trust federal authorities as saviors. The U.S. Department of Justice can conduct oversight, prosecute corrupt or abusive cops, or even sue jurisdictions and seek injunctions or consent decrees to restructure broken local law-enforcement agencies.

But while the feds should and must occasionally still play this role today, this emphasis is myopic. Sometimes the federal government is the right backstop, but it is only a backstop. In our federal system, the solution is not automatically to centralize power and push it upward. We can also decentralize and push it downward — to the levels of neighborhood watches (who watch not only potential miscreants but also the police), community police officers, juries, and other local groups.

At a time when local authorities could easily stack the deck, centralized oversight made sense. But today, racial minorities are more politically active and more powerful. In many locales, they form majorities or at least hold the balance of power. They are particularly likely to do so at the lowest levels of government, such as neighborhoods and police precincts, given American residential patterns of racial clumping.

This decentralizing approach defies traditional political labels and should appeal to both ends of the political spectrum. Conservatives can see in it Tocquevillean self-government and responsiveness. Local control is the antithesis of the distant, institutional apparatus of the state and of centralized government. And it lets citizens tame exercises of state power that intrude upon liberty. Liberals can appreciate giving more power to neighborhood residents, often poor or minority residents who still lack much faith or voice in the electoral process, to work with police and prosecutors and hold them to account. Indeed, that is the point of the much-ballyhooed movement toward community policing and community prosecution — cooperating with local residents to gain their trust and address their concerns.

As these movements make clear, local residents’ preferences can differ from the monolithic agendas of national civil-rights organizations. For example, the ACLU, supported by the NAACP, convinced the Supreme Court to strike down Chicago’s anti-gang loitering ordinance as too vague and giving police too much discretion. But the leaders of Chicago’s highest-crime, mostly minority wards had introduced and supported the ordinance and were critical to its passage.

Unfortunately, national policymakers and jurists too quickly assume that all non-white citizens reflexively resent law enforcement. What they most resent is unjust law enforcement — law enforcement that, like Philly’s forfeiture scheme, affords them little procedural respect or voice. Particularly when crime is rampant, many residents want vigorous enforcement to help them reclaim their neighborhoods from drug dealers and gang-bangers. No one wants a police state. But no one wants a war zone either. What people — minority or otherwise — want are cops, prosecutors, and judges who treat them fairly and listen to them about how to balance liberty against security in ways that work best for their particular community.

Localizing criminal justice can bring many advantages. First, it makes criminal justice more legitimate. Truly local criminal justice breaks down the “us–them” divide that so often plagues law enforcement. Authorities are not distant professionals, and defendants are not criminals to be processed. Instead, everyone works together in a participatory process in which each individual is treated with dignity as a valued member of a common group. Far from oppressing residents, that approach fosters trust and compliance and strengthens communities by empowering them to govern themselves.

#page#Second, localization lets different communities adjust their own tradeoffs among liberty, security, and other values. Some people might favor aggressive use of fines and forfeiture laws in some cases; others might think they do more harm than good. Some people welcome vigorous quality-of-life policing for everything from sidewalk vendors and food trucks to music and noise; others reject it. Both views are valid, as long as each neighborhood can decide for itself through inclusive processes and institutions and does not run afoul of basic constitutional rights. Decisions about costs and benefits are more immediate, and more meaningful, when made by local citizens instead of distant bureaucrats and judges.

Finally, localization makes the market for criminal justice more efficient, or at least could do so if taken seriously. Right now, for instance, virtually all states heavily subsidize incarceration, paying for the costs of prisons at the state level despite the fact that local criminal-justice decisions fill them. Localities thus have no incentive to use prison efficiently, and they don’t. But imagine what might happen if states apportioned the monies spent on prisons among neighborhoods to use on criminal justice writ large as they saw fit? Neighborhoods could weigh the need for hard time and retribution along with other alternatives, such as treatment, supervised release, community service, and the like. They could tally the rough costs and benefits of prison alongside those of counseling, job and life skills, and early intervention, and spend resources to solve local problems according to local preferences.

Can any of this really happen? It already is. A two-hour drive up I-95 from Philly, in the New York City neighborhood of Red Hook, Brooklyn, local authorities have been taking a very different approach to criminal justice since 2000. That was the year in which a unique public–private partnership launched the Red Hook Community Justice Center, a pioneering “community court” that operates out of a refurbished Catholic school.

Red Hook takes an integrated and community-focused approach to criminal-justice issues, treating them as local problems to be solved and prevented with local involvement. The center handles low-level crimes, including some minor felonies — things such as drug possession, trespassing, vandalism, and minor assault — along with related matters that might otherwise end up in family or civil court. It employs a wide range of alternative sanctions, social services, and treatment and prevention programs, including mediation and a youth court in which teenagers learn to resolve actual cases involving their peers.

By design, the judge and court staff have a deep contextual knowledge of the neighborhood, its residents, and its issues. The judge interacts directly and personally with defendants when hearing their cases, often bringing their families and other affected community members into the process and celebrating their successes while admonishing their failures. With the support of the community, he relies heavily on restitution, service, and other collaborative, neighborhood-centric interventions. Instead of outsourcing criminal justice to a courthouse downtown or a prison upstate, Red Hook keeps it closer to home.

The results have been promising. Over 90 percent of local residents support the community court, and approval ratings among community members of police, prosecutors, and judges in general have also jumped since the center opened. More than 85 percent of defendants at the Red Hook center feel they’ve been treated fairly, regardless of their background or case outcome. Voice and respect at the local level have produced trust and accountability. That, in turn, has helped reduce crime. Red Hook has reduced recidivism by adult misdemeanor offenders by 20 percent compared with traditional criminal courts, while simultaneously reducing the use of jail time by nearly 40 percent, and it has substantially reduced overall arrest rates as well. It has done all of this efficiently, too. While costs and benefits in criminal justice can be hard to quantify, all indications are that, compared with more traditional alternatives, Red Hook delivers pretty good bang for the buck.

Of course, localism is no panacea. Juries, for instance, are expensive and time-consuming. Community courts might work well where well defined; cohesive communities already exist, but might be tough to get off the ground in heterogeneous or badly divided areas. Many neighborhood residents are apathetic toward or even evade jury service and civic involvement. And even where residents are able and willing, one can’t simply saddle resource-starved neighborhoods with the burdens of highly localized crime control without making sure they have the means and the competence to do it. Red Hook’s program never could have gotten off the ground without funding from the federal, state, and city governments, to say nothing of private donors.

But despite such difficulties, returning to our localist roots can make criminal justice more just. It can also spur more community involvement. It is not fanciful to suppose that, had the Sourovelises’ son shown up in Red Hook, his case would have produced a more constructive, engaged, and respectful resolution than threatening to require forfeiture of the family home and to marginalize a small-time criminal by forcing him onto the street. If Philly prosecutors had to justify such forfeitures to local juries, they would probably be far more discerning about targeting innocent owners and minor drug addicts. It is healthy to depend less on centralized, monolithic approaches to criminal justice, and more on the ability of communities to weigh tradeoffs and craft solutions that work best for them.

– Mr. Bibas, a professor of law and criminology at the University of Pennsylvania and a former federal prosecutor, is the author of The Machinery of Criminal Justice. Mr. Bierschbach is a professor at Yeshiva University’s Benjamin N. Cardozo School of Law.

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