Like many Americans, I watched and listened to President Biden’s State of the Union (SOTU) Address this week. Also like many Americans, I found the address to be divisive and confusing. As a former career law enforcement officer and as a current faculty member and criminologist, I wanted to fully understand the criminal justice public policy considerations of this administration going forward. Unfortunately, my immediate reaction with the president's remarks was that he framed American law enforcement as a danger to the public and specifically to people of color. With respect to criminal justice public policy there were a couple of main items that the president listed that he would like to implement in 2023. Those items mentioned were training, standards, mental health, gun laws, and gun bans. I want to specifically address these items mentioned by the President, but I also want to give you an overview in my opinion of what the federal government should not do regarding criminal justice public policy.
The Role of Federal Government in Criminal Justice
The federal government is a huge bureaucracy with an inability to demonstrate successful management of their own current departments and organizations. This is even true of their law enforcement organizations specifically the Department of Homeland Security (DHS) as well as the Federal Bureau of investigation (FBI) has come under fire for abuses of their own. We have seen potential violations of the First Amendment, the Right to Freedom of Speech. We have seen potential violations of the Second Amendment, the Right to Bear Arms. We have seen potential violations of the Fourth Amendment, regarding search and seizure. We have seen potential violations of the Fifth Amendment, regarding due process. We have seen potential violations of the Six Amendment regarding speedy trial for our citizens. We have seen potential violations of the Eighth amendment, regarding excessive bail and unusual punishment. And finally, we have seen violations of the Tenth Amendment, the separation of powers between the federal government and the states. If the federal government, under the executive branch and the President of the United States believes that they can effectively manage policing at all levels of government then they are gravely mistaken. The Founding Fathers never wanted us to have a national or nationalized police force and they spoke about this often and memorialized it in the Federalist Papers. I believe in the principles of federalism. The states are great incubators of thought and reason and ideas. States are the appropriate authority to govern local and state police agencies and police officers. Every city in America is different and every state in America is different. The citizens of New York City have different wants and desires of their policing than the citizens of Little Rock AR. The citizens of Tampa FL have different wants and desires of their policing than the citizens of San Francisco CA. And the citizens of Detroit MI have different wants desires than the citizens of Overland Park KS. Therefore, the design of criminal justice public policy is best suited as a state’s rights issue. The federal government has a responsibility for direct oversight of federal law enforcement agencies. And this is not only a function of the Executive level of the U.S. Government and the judicial level of the US government but more importantly the legislative level of the US government. Congress has a due diligent responsibility to provide legislative oversight over federal law enforcement agencies and states should have the same due diligent responsibility to provide legislative oversight over state police agencies and local jurisdictions. And finally, the cities and counties themselves have a responsibility for due diligence over their local police forces. American law enforcement is unlike any other law enforcement in the world. It provides a system of checks and balances because we have so many levels of policing. Any effort to nationalize any part of policing at the local or state level should never be allowed.
The Founding Fathers clearly intended the states to bear the responsibility for public safety. Some states may do it well, and some may do it not as well. The Constitution is not a document that is designed necessarily for perfection or even efficiency. Concerns about oppressive use of governmental power motivated the leaders of our country at its founding to make a clear distinction between where the police power was to be rested. Alexander Hamilton wrote in the Federalist Number 17 that law enforcement would be the responsibility of the states.
Is this more about Federal Control of Police than Improving a Criminal Justice System?
In October 2005, a General Accounting Office (GAO) study cast doubt on the effectiveness of the COPS program. "Reviewing data between 1994 and 2001, the GAO concluded that COPS funding added about 17,000 to the sworn officer pool available to local agencies." (“The federalization of local law enforcement - Police1”) Though the ability of the program to reduce crime varied among jurisdictions, the overall conclusion was that any reduction in crime was “modest” and that “factors other than COPS funds accounted for the majority of the decline in crime during this period.” These conclusions suggest that federal dollars for local policing have more to do with control via “accountability” than crime reduction.
Police consent decrees are mutually binding agreements that are employed when the government through the Department of Justice (DOJ) has determined that one of the 18,000 police departments in the nation have crossed a line in terms of conduct towards citizens, often in grave and serious ways. Police consent decrees became more prevalent with the Violent Crime Control and Law Enforcement Act of 1994, known simply as the Crime Bill. If the DOJ finds reasons to believe that a police department is in a crisis with regards to tactics, it will initiate investigations. If there is substantial evidence of systematic abuse, the DOJ then begins the process of negotiating an agreement with the police department, city officials and those communities directly impacted by the abuse. Once the agreement is solidified, it then goes before a federal judge for approval and a federal monitor is assigned to oversee the reform process. To date, there are now fifteen total cities with federal oversight in the way of consent decrees. U.S. Attorney General Merrick Garland announced new rules for how the government will monitor reform in communities Monday. He announced 19 actions the department will take in order to address concerns about the current monitoring efforts.
The new guidelines limit how much cities can spend on monitors’ fees, outline training tools for monitors and judges overseeing those monitorships, and they require a hearing after five years so jurisdictions can prove they’ve made progress, and potentially ask for an end to their consent decree.
Concerns about Federal Unionization than improving a Criminal Justice System?
In 2009 House Resolution 413 — the oddly-named Public Safety Employer-Employee Cooperation Act — has a stated purpose of extending collective bargaining rights to all first responders. Doug Stafford from the National Right to Work Committee believes this legislation has greater implications and grants the federal government “broad power to impose the terms and conditions of employment for ... public safety workers and local and state governments.” I have no doubt this bill or some form of this bill, will be seen again and soon.
Ultimately, I believe the reality with the more progressive wing of our elected officials is not about fixing issues or making improvements to the criminal justice system but is more about control of our nations police forces from sea to sea and that cannot happen. We do not have a broken criminal justice system. We are not systematically racist in American policing today. We do have and we must recognize opportunities for improvement and that is where we need to focus and that is where the federal government, the President of the United States and the Congress can be of assistance.
Research, research, and more research
Criminal justice public policy research is nonexistent there are a multitude of areas in which modern up to date research would be beneficial to the criminal justice sector. We lack National Research in such areas as fatherlessness, Crime in urban America, crime in rural America, and more research on national drug policies. We need research on future police technologies that could protect officers from harm's way, that could minimize use of force incidents between police officers and citizens, and most importantly on effective policing strategies like evidence-based policing. We need more research on effective training methods, like outcomes-based training, interactive training, and practical training. We need more research on recidivism in America and more research on specialty courts such as mental health courts and drug courts.
Further Implementation and Continuation of the First Step Act
On December 21, 2018, President Trump signed into law the First Step Act. The act was the culmination of a bi-partisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety. The First Step Act requires the Attorney General to develop a risk and needs assessment system to be used by BOP to assess the recidivism risk and criminogenic needs of all federal prisoners and to place prisoners in recidivism reducing programs and productive activities to address their needs and reduce this risk. Under the act, the system provides guidance on the type, amount, and intensity of recidivism reduction programming and productive activities to which each prisoner is assigned, including information on which programs prisoners should participate in based on their criminogenic needs. The system also provides guidance on how to group, to the extent practicable, prisoners with similar risk levels together in recidivism reduction programming and housing assignments.
The First Step Act also expands the Second Chance Act. Per the FSA, BOP developed guidance for wardens of prisons and community-based facilities to enter into recidivism-reducing partnerships with nonprofit and other private organizations, including faith-based and community-based organizations to deliver recidivism reduction programming. President Biden could further support the implementation of this act and ensure its success in years to come and even build upon its successes.
Mental Health is a Major Issue in this Country
Forty-two percent of America’s Generation Z are dealing with a mental health condition, a new survey finds. A range of these issues were identified during the middle of the COVID-19 pandemic. The analysis by Harmony Healthcare IT suggests tens of millions of Gen Z young adults started dealing with a mental health problem in the months immediately following the start of the global pandemic in March 2020. The survey highlights a staggering percentage of young adults diagnosed with anxiety, depression, attention-deficit/hyperactivity disorder (ADHD), or post-traumatic stress disorder (PTSD) during the pandemic. Twenty percent of the 1,000 Gen Z study participants say they have a regular therapist, 57 percent take regular medication, and 39 percent attend therapy for mental health issues once a week. Gen Zers are also two times more likely than millennials or Gen Xers to report struggling with daily emotional distress issues. (“42% of Gen Z diagnosed with a mental health condition, survey reveals”) More than two in five of the country’s 68 million Gen Zers have a clinically diagnosed mental health condition. Nine in 10 Gen Z adults diagnosed with mental health issues say they struggle specifically with anxiety and eight in ten say they fight against frequent bouts of depression.
Mental health disorders can be caused by genetics as well as environmental influences. "And these disorders are only compounded by our fast-paced society that brings more worry and stress than previous generations." (“The Advent of Feral Man - by Dr Currie Myers”) With the increase in drug dependencies, alcohol consumption, and gambling coupled with poor diet, lack of exercise and greater exposure to mental and physical abuse, mental health issues are at an all-time high.
In the late 1970’s, America’s mental health public policy began to shift away from treatment of many disorders at mental health facilities. After 50 years, we have steadily seen this philosophy has had a dramatic effect in the treatment of mental health disorders and the continued closing of mental health hospitals has only exacerbating the problem. The school of thought was that most patients would do well within the community as opposed to being in hospitals, so overtime the facilities were dissolved. Now, there are not enough beds to house patients in real need of psychiatric treatment. We have tried community-based treatment centers but even these centers are unable to get the structured care that many mentally ill patients need. As a result, prisons and jails have become the option for individuals with psychiatric health problems and they are not funded or equipped to handle the care that most of the mentally ill require.
Sheriffs across the country have warned for the last twenty years of this growing problem of mental illness within the jails. In most jails, 60-70% of inmates are on some sort of psychotropic medicine. "America’s sheriffs use classification systems when they book into jail inmates or detainees." (“The Advent of Feral Man - by Dr Currie Myers”) This system includes the identification of not only criminal history backgrounds but also medical and mental well-being. This means that we have a system to identify those in need, but the sheriffs do not have a way to hand the inmates over to mental health facilities that may be the better option for long term treatment. Long-term recovery and a stable, structured environment are necessary for many mental health conditions, and this requires mental health hospitals. Patients with psychiatric disorders also need to have medications on a regular cycle as well as therapy sessions. These cases are specifically where psychiatric hospitals come into play.
Federal Drug Policy Shortcomings
The Federal Government has allowed legal chaos to occur regarding federal drug policy. The government has turned a blind eye to states for over 25 years and have allowed now more than 37 states to pass some sort of medical cannabis legislation. They have allowed this even though it is still against federal law. As a result, the federal government overnight could extensively arrest millions of citizens and shutter a billion-dollar industry if they wanted. Congress must act now to stop this legal chaos. Medical Cannabis legalization and public policy has shifted significantly on the spectrum of acceptability of governmental policies. At least for medical cannabis public policy, the Overton Window has closed politically now that a large majority of Americans now support at least medical cannabis and since thirty-seven states have now passed some form of cannabis legalization. Nearly 7 in 10 Americans think the use of marijuana should be made legal in some form in the United States. At the federal level, Republicans are leading the way in Congress with the most sensible federal legislation. Last year, Reps. Dave Joyce (R-OH), Brian Mast (R-FL) and Nancy Mace (R-SC) shared their perspectives on the issue in an interview series with RealClearPolitics, sponsored by the Coalition for Cannabis Policy, Education, and Regulation (CPEAR). Each of the three lawmakers said that they would like to see an end to federal prohibition, and that conservatives should embrace the Constitution’s federalist principles by letting states make their own choices about cannabis policy, such as Mace’s State’s Reform Act.
Gun Control and Gun Bans are Not the Answer
Federal gun control bans are bad criminal just public policy. Strict gun-control policies have failed to deliver on their essential promise: that denying law-abiding citizens access to the means of self-defense will somehow make them safer. This should come as no surprise, since gun control has always been about control, not guns.
There has been a massive research effort going back decades to determine whether gun control measures work. A 2020 analysis by the RAND Corporation, a nonprofit research organization, parsed the results of 27,900 research publications on the effectiveness of gun control laws. From this vast body of work, the RAND authors found only 123 studies, or 0.4 percent, which tested the effects rigorously. "Some of the other 27,777 studies may have been useful for non-empirical discussions, but many others were deeply flawed." (“Do Studies Show Gun Control Works? No. - Reason.com”) Not only is the social science literature on gun control broadly useless, but it provides endless fodder for advocates who say that "studies prove" that a particular favored policy would have beneficial outcomes. This matters because gun laws, even if they don't accomplish their goals, have large costs. They can turn otherwise law-abiding citizens into criminals, they increase prosecutorial power and incarceration, and they exacerbate the racial and socioeconomic inequities in the criminal justice system. Another RAND Corporation meta-analysis updated in 2020 found inconclusive evidence that bans on assault weapons and large-capacity magazines have any effect on mass shootings or violent crime.
The Unintended Consequences of Red Flag Laws
The orders resulting from these laws are known as “gun violence restraining orders (GVROs).” This law may seem reasonable to the general public but the way such laws have been implemented in many states poses serious legal, and prudential concerns. The Constitutional guarantee of due process is the most commonly cited concern in the implementation of red flag laws. Most of these laws reflect a view of due process shown by Donald Trump in 2018 when he quipped, “take the guns first, go through due process second.” The problem here is the first word of “due process:” legal process is “due” before the government takes someone’s “life, liberty, or property,” not after. The problem here is that the petition speeds through the court, often without giving the subject person actual notice or an opportunity to defend against the accusation. "The bare minimum should be for a hearing ahead of the issuance of a GVRO, with the subject present." The term “red flag” is something of a misnomer, too, as the “suspicious” activity that can be the basis of a petition includes the simple act of buying a gun, or just being interested in weapons. This turns constitutionally protected First and Second Amendment activity into the basis of a seizure of property. Where the orders are granted with relaxed evidentiary burdens, and the petitions can be brought by an ex‐boyfriend or girlfriend, GVROs can become an instrument for malicious individuals to harass and endanger. "This concern is far from baseless, as the forensic psychology journal “Behavioral Science & the Law” observed that about a third of GVROs were issued against innocent people." (“'Red Flag' Laws and Their Awful Consequences | Cato Institute”) In a country plagued with needless violence as a result of no‐knock raids and a heavily militarized police, the potential benefits of red flag laws pale in comparison to the certain damage they will bring to community relationships with police. In short, Red Flag laws are subjective at best and who will be the arbiter of these subjective laws?
Conclusion
The President’s speech regarding the portions on criminal justice policy was concerning. We should be cautious that there is no question that somewhere in those concepts mentioned is truly grounded political actions and steps on where progressives would like to take our country. And it is all about control. And the best way to control people is through the oversight of their money, via 87,000 new IRS Agents and through the oversight of their actions, via a nationalized police force. And if the President cannot accomplish this through law, then he will surely do so through presidential fiat.
Some suggestions for good criminal justice public policy going forward should be the following:
1. Properly Fund Police -The evidence is clear: Smart investments in the police can significantly lower crime, particularly violent crime. Law enforcement agencies must have the necessary resources to recruit, train, and retain quality officers in order to keep our streets safe. And this funding should be through general funds and never through the use of fines, fees, and forfeitures.
2. Focus Time and Resources on Preventing and Solving Serious Crime - Police are tasked with too many things outside their core functions of protecting public safety and serving the public. Community organizations should play a leading role in addressing societal issues such as drug addiction, mental health issues, and homelessness to allow police to spend more time focusing on violent and property crimes.
3. Focus on Evidence-Based Policies That Reduce Violent Crime - There are proven approaches to prevent violent crime from happening in the first place. Many cities have implemented strategies such as focused deterrence, urban blight reduction, and increased community programs and services with positive results on public safety.
4. Continue to Enact Smart on Crime Policies – Many states have shown that investing in prison alternatives such as drug and other specialty courts, focusing jail and prison bed space on dangerous individuals, and increasing work and educational opportunities for those in the criminal justice system can reduce recidivism and allow communities to thrive.
A Criminologists Response to the State of the Union Address