In a nation where one out of every three American adults has a criminal record and millions more are impacted by having family members and neighbors behind bars, UCLA School of Law professor Sharon Dolovich was moved to probe the complexities of a system that, she says, has grown massive, unwieldy and deeply troubling.
“The New Criminal Justice Thinking” (New York University Press, 2017), which Dolovich edited with professor Alexandra Natapoff of Loyola Law School, includes 14 essays by scholars, sociologists and criminologists who train their eyes on the system’s hidden corners.
They aim to start a new conversation about a system paradoxically rife with injustice. “I see this book as a vital step toward understanding the reality on the ground,” says Dolovich, who directs UCLA Law’s Prison Law and Policy Program. “We can’t even begin to think about reform until we fully confront what the system is.”
Dolovich spoke recently with UCLA School of Law’s senior writer Joshua Rich about her book and the failings of the system.
So what is the criminal justice system?
A form of governance. Think about its reach: Add up how many people have been arrested, in custody, on probation or on parole; their families; their communities; and the intersections with public institutions like schools, welfare, hospitals and public housing. You realize that, for many disadvantaged people and especially poor people of color, the criminal system is actually the governance strategy.
The book vividly describes selective use of aggressive police tactics, failings of defense counsel, the degradation of solitary confinement and prisoners’ loss of rights after release. How did we get here?
One of our authors makes a convincing case that we need to see the system through a new lens: It’s not even pretending to be about justice, culpability and retribution. It’s an administrative process that’s just shunting people through, just processing cases. So it doesn’t even matter who those people are or what they may have done or whether they did anything at all.
But notice that they end up being the most disenfranchised people in society. Why aren’t people from Beverly Hills feeding the maw of the criminal system? They have political power, resources, wealth and social capital. They wouldn’t stand for it for a minute, and the whole system would cave. And it’s complicated because the lawyers, judges, police and correctional officers in this system — many of them are people of good will.
Your essay ponders the disconnect between the Supreme Court’s constitutional promises to protect criminal defendants and prisoners, and its willingness to let stand conduct or results that a lay observer would see as plainly unconstitutional. What drove this analysis?
I have been wondering: How is the promise of justice so empty when we have this almost regal judicial system that everybody takes so seriously? You know, we have judges and their robes. The Supreme Court has red velvet curtains, and people say, “Yes, your honor” and “No, your honor,” and, in therory, everybody gets a hearing. But then the cases just get processed through — summarily affirmed, summarily affirmed, summarily affirmed.
So what’s going on? The Supreme Court presents its work as if it’s crafting standards that courts will then apply seriously to root out unconstitutional treatment. Yet when you look closely at these standards, they’re designed to almost guarantee that courts will rubber-stamp government conduct as constitutional, regardless of what actually happened on the ground.
In what ways?
A court rarely even rules on these issues. In almost every criminal case raising constitutional claims, the petitioner is in prison or jail. And most cases brought by prisoners get kicked out procedurally, so it’s really hard for them to get a hearing. In the habeas corpus context, rules are incredibly arcane, so prisoners who challenge convictions or sentences navigate extremely short timelines, threats of procedural default and really complicated legal standards — with no right to counsel or even legal assistance. It’s the same for cases challenging prison or jail conditions. And remember that people who are in jail or prison are largely undereducated, semi-literate or illiterate.
But if, against all odds, prisoners do get a hearing on the merits, they still lose — even when the state’s conduct seems beyond the pale — because the rules allow judges to decide constitutional criminal claims without ever really considering the facts that led people to challenge their treatment. So the state often wins despite affirmatively bad behavior by police, lawyers or correctional officers. We should be troubled by a system of constitutional review that works like this.
What gives you hope?
Once we start to see the people we incarcerate as people, you’re going to see profound change. We’re starting to see that. Ferguson humanized the problem of police brutality. The campaign against solitary confinement changed perceptions of people in that environment from dangerous animals to people suffering from mental illness being held under conditions akin to torture.
Those are humanizing moves. Once improvements are framed as a matter of exercising the extreme coercive power the state is entrusted with in a way that recognizes that the subjects of its power are human beings who deserve to be treated like human beings — that’s when you begin to see the possibility of real change.