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Tuesday, November 10, 2009

Help Wanted: Clearing the Troubled Assets of the Penal State

I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution."  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late '60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous "legacy" costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I'm not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

Schools to Jail: Research by sociologist Bruce Western and his collaborators documents that youg minority males who do not finish high school experience witheringly high rates of imprisonment by the time they are 30 (close to 2/3rds).  Can lawyers find ways to keep minority males in school?  Since school discipline and aggressive policing, as well as gang activity itself, are all factors driving such kids out of school, lawyers would seem to have lots of ways of intervening (getting paid, not so obvious).

Mental Health: Huge numbers of people move in and out of jail and prison because we have foreswarn the traditional practices of confining the untreated mentally ill, but have failed to generate effective community alternatives.  Finding some way to reinvent our civil governance of the mentally ill will need lots of lawyering (lots of doctoring too no doubt). 

Reinventing public defender and district attorney offices: Prosecutors have huge opportunities to rationalize social costs by being more selective in deciding who qualifies for a sentence in the "big house" as opposed to lower cost alternatives like fines, probation, and jail.  In exercising more judgment, they need defenders who can make a case pre-trial for their client's "good" risk profile and "promising" non-prison plan, as much as they might focus on weaknesses in the evidence or police conduct.  Innovators in traditional defender and prosecutor offices can also play a key role in addressing all the issues above.

Posted by Jonathan Simon on November 10, 2009 at 08:45 PM in Criminal Law, Jonathan Simon | Permalink

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