28 April 2023
Criminal Legal System Reform for a Healthier Society
Criminal Legal System Reform for a Healthier Society
By Sia Henry, J.D.
MAPS Bulletin: Volume XXXIII Number 1 • 2023
As an attorney, for years I engaged in conditions of confinement¹ efforts, spending inordinate amounts of time in prisons and jails and bearing witness to the realities of centuries of racism. I have also supported communities in establishing pre-charge restorative justice diversion programs that bring those who have caused and been impacted by harm into healing and accountability processes without relying on prosecution or incarceration. Throughout my career, I have collaborated with community-based organizations, criminal legal system actors (including police and prosecutors), and legislators. In doing so, I have found that practically all of us want a more peaceful society where people are well and have access to the resources they need to thrive. But how do we get there?
To realize such a society, significant changes will be necessary in every aspect of life. With respect to the criminal legal system, reform efforts must center on three goals: (1) reducing harm, (2) addressing underlying reasons people cause harm, and (3) divesting from our system of punishment.
The ensuing recommendations fit criminal-legal-system-related drug policy reform into this framework, with the understanding that these suggestions must be paired with a public health model. Such a model should include investment in more honest, accurate, and accessible drug education; harm reduction services; and policies that reflect a comprehensive understanding of the circumstances that lead to disruptive drug use and substance use disorders.
Goal One
Reducing Harm
Recognizing people use substances regardless of their legal status (Coyne & Hall, 2017), it is critical drug policies aim to reduce harm, both the potential harm posed by the substances themselves and the harm presented by their criminalization.
While the federal government has and will likely continue to lag behind states and a majority of the public sentiment (Slisco, 2021) in implementing transformative changes to the criminal legal system, local and state governments are well positioned to make significant progress. For instance, shifting away from the extensive damage the War on Drugs’ criminalization of recreational use and substance use disorders has caused, some states like Oregon and Colorado have passed initiatives to allow for personal use of and regulated access to some psychedelics (Cohen et al., 2022; Ali et al., 2021; MAPS, 2022c). This dual approach meets the needs of people more comfortable using natural and other medicines in a clinical setting, and those who prefer to use privately in their homes. Because legalization allows for greater quality control, these approaches reduce the potential risks the substances pose.
An additional key benefit of decriminalization and legalization is that survivors of crimes (especially sexualized harm) committed in association with drug use are more likely to report because they do not have to be fearful their use of illegal substances co-occuring with the assault would, at best, undermine their perceived credibility as a survivor and, at worst, result in their own criminalization.
As more states take steps to end drug prohibition, it will be important for them to incentivize, if not require, regulated access services to be financially accessible (e.g., covered by patient assistance programs and financially feasible for those without insurance) to ensure truly equitable access. Meanwhile, for personal use, it is critical to have honest, culturally appropriate, and easily accessible public education on the benefits and risks posed by each drug. Failing to disseminate such information keeps potentially life changing / life giving substances out of traditionally oppressed communities, especially those of color.
Our system of punishment does not work and actually makes us less safe by increasing the likelihood people convicted of a crime will cause more harm in the future.
Goal Two
Addressing Underlying Reasons People Cause Harm
Contrary to “tough-on-crime” political messaging, most survivors of violent crime want a new approach to safety that, among other things, is more likely to ensure “what happened to them… [will] never happen again” (Anderson & Rooks, 2021). This aligns with the general public’s desire for a safer society. And yet, many continue to support our system of punishment based on the common misconception that the criminal legal system “holds people accountable.” The reality, however, is that we cannot hold anyone accountable but ourselves. Richie Reseda, an abolitionist-feminist organizer and cofounder of Initiate Justice and Success Stories, explained it best when he said accountability is when you “understand and acknowledge the harm” you’ve done and, ideally, commit to never doing it again (Reseda, 2021).
Neither our prisons nor our courtrooms have ever been spaces that foster accountability or even encourage it. These are purely institutions for punishment, with incarceration only relocating a person’s harmful behavior to a penal institution, which is not the same as addressing that behavior. In fact, our system of punishment does not work and actually makes us less safe by increasing the likelihood people convicted of a crime will cause more harm in the future (Bartle, 2019; Cullen et al., 2011).
Instead of continuing to invest in revenge and feeding more people into our racist and indefensible system of mass incarceration (Davison, 2021), we should be endeavoring to understand and address the underlying issues that drive people to engage in behavior we despise, hate, and fear. Only then will we actually see a significant decrease in instances of violence, sexual assault, and other harm in our society.
It is critical people have opportunities to safely and effectively take accountability for harm they have caused and make things as right as possible (through e.g., processes like restorative justice diversion; (Impact Justice, 2021)). And it is equally important to recognize that, oftentimes, the harm they have caused (or continue to cause) is the product of unresolved trauma (Wyrick & Atkinson, 2021). For instance, studies have found children raised in “inner cities” face conditions known to cause PTSD that are similar to those military veterans face (Citizen, 2019). Decades of draconian criminal legal system policies, especially the War on Drugs, have contributed to this reality (Thompson, 2014). We must, therefore, reform those policies (see, Goal 3 below) but also create opportunities for the most impacted people to heal.
For that reason, as government agencies and advocacy groups explore the use of psychedelic-assisted therapy for veterans struggling with PTSD (Harrington, 2022; MAPS, 2022a), we should also be fighting for comparable opportunities for people living in low-income communities of color. In the context of the criminal legal system, this could look like diversion programs whereby, instead of being charged with a crime and processed through the criminal legal system, people who have caused harm could have the option² to participate in a program that includes psychedelic-assisted therapy.
² It is critical that this be voluntary.
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Goal Three
Divesting from our System of Punishment
Since we know the criminal legal system has failed to keep people safe despite costing taxpayers billions of dollars a year (Initiative & Rabuy, 2017), we have to divest from this system of punishment. Doing so would significantly free up resources we could reinvest in harm reduction, education, a strong social safety net, and other support systems.
What does a divested approach to drug policy reform look like? For starters, at both the federal and state levels, we need to legalize and carefully regulate all drugs to ensure people have access to the information and tools they need to reduce the risks associated with substance use. In October 2022, President Biden announced plans to pardon people convicted of simple marijuana possession at the federal level, urged governors to do the same at the state level, and asked the Secretary of Health and Human Services and the Attorney General to develop a process to review how marijuana is scheduled (House, 2022). Though lauded by some—including MAPS—this largely symbolic gesture will fail to lead to anyone being released from prison (MAPS, 2022b; Lartey, 2022; Zrinski & Perry-Thomas, Cherron, 2022). That the announcement excludes undocumented folks and veterans, does not provide opportunities for federal employment for people who use or have used cannabis, and does not call for legalization, further demonstrates why this kind of incrementalism after half a century of a nonsensical, racist, and wildly destructive war on drugs is simply not good enough.
Alongside legalization, federal and state governments should release all individuals currently serving periods of incarceration for drug-related offenses and provide them with the resources necessary to support their successful reentry. For those who have already completed their sentences, state governments should invest in an automatic record expungement process with support from organizations like Code for America (Automatic Record Clearance, n.d.). We must make both of these changes, not only with respect to possession, but distribution and trafficking as well.³ Continuing to criminalize the latter fuels violence, especially in under-resourced communities and neighboring countries (Thompson, 2014; Huey, 2014). If we are truly committed to realizing a more peaceful society, we can not stop at removing penalties for people engaging in non-violent drug offenses while still imposing harsh penalties for those who participate in drug-related offenses that have turned “violent.”
The public’s intolerance for violence is understandable as it comes with very real, heartbreaking, and lasting consequences for those impacted. The truth, however, is that in both instances of drug distribution in which harm does and does not occur, the same social factors that brought people to engage in the exchange tend to be the same. We must therefore focus our resources on addressing the underlying reasons people sell drugs. For instance, in low-income communities of color, individuals often enter the drug market (Dunlap et al., 2010) because they view it as one of their only opportunities for economic mobility, a reality perpetuated by centuries of white supremacy, discriminatory economic practices like red lining (Gross, 2017), and underinvestment in educational systems. Our solution, then, must be to stop punishing people for operating in response to circumstances outside of their control and, instead, change those circumstances. One such change could include creating pathways for those most harmed by the war on drugs to be able to legally and safely distribute the substances predominantly white corporations are now preparing to profit off of.
³ We must do this instead of continuing to support policies like the US Sentencing Commission’s guidelines calling for the harshest punishments for “career offenders,” including those convicted multiple times for drug-related offenses
Incremental Changes
While the recommendations in this section may seem radical, as Angela Davis said, “Radical simply means ‘grasping things at the root.’” It is at the “root” where the source of our society’s problems lie, and we must address those issues directly if we are to ever realize the safer, healthier world so many of us dream of. That being said, we did not develop our problems overnight and it will unfortunately take time and public and political appetite and resolve to bring about the transformative changes outlined above. In the meantime, while incrementalism should not be the standard we operate from, state and federal governing bodies can begin by taking on bold sentencing reform.
This should include a complete revision by the US Sentencing Commission of the Drug Conversion and Drug Quantity Tables in the Federal Sentencing Guidelines, which federal judges largely rely on to determine sentences for drug-related offenses. Not only do these tables call for wildly severe penalties, they have no basis in the actual dangers posed by each substance, the realities of the illicit drug market, criminal culpability, etc (Perez-Reyzin et al., 2022). Changes to these tables and related reforms must incorporate significant reductions in sentences across the board as—while the US boasts some of the longest prison sentences in the world—research has made it clear such outrageous sanctions do not lead to greater safety (Lufkin, 2018). In contrast, we should take our cue from countries like Norway, which has one of the world’s lowest rates of crime (Kain, 2011) and prison sentences averaging eight months (James, 2013).
A Note on Concerns About Reform-Related Costs
Some of the aforementioned ideas may prove costly to implement but financial constraint is a shortsighted excuse for avoiding taking on truly transformational changes. States and the federal government are spending billions (Initiative, n.d.) each year on supervision for people incarcerated and on probation and parole. Much of that money supports the nation’s decision to use prisons and jails as the response to our mental health crisis, with over 70% of the country’s incarcerated population having at least one diagnosed mental illness or substance-use disorder (or both) and a third suffering from a serious mental illness (Leifman, 2022). How much longer can we afford to continue investing in “solutions” we know do not work?
In many instances, the true issue is not cost, but the decision to be brave in challenging the status quo; to stop politicizing health, wellness, and access to life-changing resources. States who have participated, for instance, in the Justice Reinvestment Initiative (an approach that uses data-driven policies and practices to reduce penal populations and reinvest the resulting savings in proven public safety strategies) reported over a billion dollars in saved or averted costs through 2016 (Harvell et al., 2016).
While the above-mentioned recommendations certainly cost money, they would result in savings down the line, especially when taking into account the resulting reduced strain on the legal and medical systems, first responders, and other public resources. This does not even begin to include the countless moral and unquantifiable benefits that come with making the changes necessary for realizing a safer, healthier society.
References
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Anderson, L., & Rooks, R. (2021, March 16). Opinion | No, crime survivors don’t want more prisons. They want a new safety movement. Washington Post. https://www.washingtonpost.com/opinions/2021/03/16/prisons-public-safety-trauma/
Automatic Record Clearance. (n.d.). Code for America. Retrieved January 31, 2023, from https://codeforamerica.org/programs/criminal-justice/automatic-record-clearance/
Bartle, J. (2019, August 16). We know that prison doesn’t work. So what are the alternatives? The Guardian. https://www.theguardian.com/commentisfree/2019/aug/16/we-know-that-prison-doesnt-work-so-what-are-the-alternatives
Citizen, E. (2019, March 23). Inner City Blues: Children Raised in Inner-Cities Face Comparable PTSD Causing Conditions and Consequences as Military Veterans and Deserve Our Attention by Eric Citizen: SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3359012
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Sia Henry
Sia Henry is deeply committed to liberation and racial justice and has spent a decade in the criminal legal system reform and abolition spaces. She comes to MAPS with the goal of ensuring Black, indigenous, and other communities of color have meaningful access to transformative healing opportunities. Sia previously worked with the Restorative Justice Project at Impact Justice, supporting communitybased organizations and criminal legal system partners around the country in establishing pre-charge restorative justice diversion programs that, without relying on prosecution or incarceration, bring those who have caused and been impacted by harm into healing and accountability processes. She also spent a number of years on conditions of confinement work, engaging in impact litigation and training to improve conditions for incarcerated people with physical and developmental disabilities and mental health issues and those most at risk of sexualized violence. Sia serves on the Board of Directors for Mount Tamalpais College (formerly the Prison University Project) at San Quentin State Prison (the country’s first, tuitionfree and independently accredited college situated inside a prison). She also founded the Hood Exchange to introduce formerly incarcerated, Black communities to international travel throughout the African diaspora. Sia graduated from Harvard Law School and Duke University.
