From Pessimism to Optimism and Back Again: A Half Century of Criminal Justice Reform

The last decade has been a head-spinning time for the American criminal justice system. It became the primary target of Black Lives Matter, a popular movement for justice that crested in 2020 when millions of people around the world took to the streets to decry police violence against Black Americans. 

But the energy for change was hardly confined to grassroots protest. The past decade also saw the election of dozens of progressive district attorneys dedicated to reducing the use of incarceration. In New York, the police practice of “stop and frisk” was successfully challenged in court. And the use of cash bail was reduced or eliminated across the country.  

Thanks to these and other developments, incarceration in the United States has been falling for more than a decade. And the Council on Criminal Justice reports that racial disparities in imprisonment rates have also improved significantly.  

But — record scratch! — the momentum for criminal justice reform has recently been interrupted. Violence increased significantly in many American cities during the pandemic. Research suggests that the homicide rates in some parts of Chicago are comparable to the most violent cities in the world.  Though some trendlines are bending down again this year in major cities, three-quarters of New Yorkers say that crime is a “very serious” problem, the highest rate since the 1990s.  

As violence and fear of crime have increased, public safety has become a prominent political issue again, with predictable results. In 2015, Adam Gopnik, writing in the New Yorker, tried to alert reformers to the dangers of ignoring concerns about crime: “Amnesia about the effect of crime on middle-class voters is a dangerous narcotic for liberal politics,” he warned.  

And so it has proved. While many progressives engaged in obfuscation and denial about the rise in crime, avatars of reform have been voted out of office (e.g. Chesa Boudin in San Francisco) and signature legislative achievements have been relentlessly attacked and undermined (e.g. New York State’s bail laws).

We have been to this particular rodeo before. Indeed, the history of criminal justice in the United States over the past 50 years can be seen as a series of pendulum swings, as the field has lurched from optimism to pessimism and back again. Three big ideas in particular have helped to shape and define criminal justice in the United States over the past half-century: “nothing works,” the broken windows theory and The New Jim Crow.

In attempting to wrap my arms around the criminal justice zeitgeist, I am necessarily painting with a broad brush here. To be clear, I am not arguing that these were the only ideas that mattered during the past 50 years. And plenty of scholars and practitioners were actively engaged in work that sought to resist the dominant narratives of the time. My claim is that these three ideas were particularly influential and somehow managed to embody the spirit of their times better than any others.

The cycle of pendulum swings in criminal justice began in 1974, when Public Interest published an essay by sociologist Robert Martinson with a stark conclusion: “with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.”  Martinson’s study, which received enormous attention, including a segment on “60 Minutes,” came to be known by a devastating shorthand: “nothing works.”

Written in the midst of a crime wave, Martinson’s message resonated with both ends of the political spectrum. For conservatives, the idea that criminals could not be rehabilitated offered support for a greater focus on retribution and incapacitation. For the left, Martinson’s study fed into a generalized distrust of government and helped advance the idea that the underlying causes of crime were structural, not individual, and thus required systemic change rather than programmatic solutions. 

In the political arena, the idea that it was impossible to reform criminal behavior helped set the stage for a wave of “tough on crime” legislation, including laws creating mandatory minimums, reducing the use of indeterminate sentencing and establishing three-strikes-and-you’re-out rules. 

And then the pendulum swung toward optimism. The broken windows theory, as articulated by George Kelling and James Q. Wilson in a landmark 1982 essay in The Atlantic, played a crucial role. Kelling and Wilson urged police to focus on disorder as a means to deter more serious crime. Over the course of the 1980s, numerous police departments embraced this idea, along with a host of other reforms (such as CompStat, hot-spot and problem-oriented policing) that encouraged proactive enforcement.  

A can-do spirit seemed to pervade the field of criminal justice. It was, in many respects, an era of technocratic problem solving. Researchers were able to document a host of discrete interventions, such as cognitive behavioral therapy, drug court and focused deterrence, which had achieved tangible results in changing the behavior of offending populations. The U.S. Department of Justice established a website devoted to sharing “evidence-based programs” with local decisionmakers. As public safety improved throughout the 1990s and 2000s, crime slowly faded as an urgent political problem.  

This period of relative optimism within the field of criminal justice was disrupted by the publication of “The New Jim Crow” in 2010. Michelle Alexander’s book popularized the idea that a straight line could be drawn from slavery to Jim Crow segregation to the era of mass incarceration. In the process, Alexander made a powerful case that the racial disparities still pervasive in the criminal justice system were the preeminent civil rights issue of our time.  

While Alexander has been criticized for overemphasizing the impact of the war on drugs and underplaying the extent to which Black politicians and voters helped to drive punitive lawmaking, nothing seems to have dimmed the public ardor for the book, which continues to sell briskly more than a decade after its release. 

“The New Jim Crow” helped to fuel Black Lives Matter, but it also contributed to a growing sense of pessimism about American government. Alexander suggested that despite decades of effort by millions of people committed to the idea of racial justice, little had fundamentally changed in the United States: The new Jim Crow is still Jim Crow, after all.

Which brings us to today. What will define the next epoch in the field of criminal justice? Are we ready for the next big idea?  

It is, of course, a fool’s game to attempt to predict the future. Game-changing ideas are almost always the product of unique alchemy — the right concept comes along at the right time and is communicated in just the right way. (It is worth noting that the big ideas sketched above could all be distilled in three words or less, and two of the three make vivid use of metaphor.) It is impossible to manufacture this kind of chemistry on demand. 

No one can say for certain where the next big idea will come from or what it will be.  But one can express hopes. Having lived through the boom-and-bust cycle before, my personal wish is that we break out of the oscillating pessimism-optimism dynamic. In order to do so, I suspect that the next big criminal justice idea will have to do the following: 

Embrace nuance. We need to be able to hold two thoughts in our heads simultaneously. We must acknowledge that our justice system has done real and unnecessary damage to hundreds of thousands of Americans and that we should seek to minimize the potential for harm going forward. At the same time, we must also honor the reality that the justice system is an essential component of civil society and that it has real strengths that any reform effort should seek to leverage. In short, the next big idea should seek not to “defund” or “abolish” the justice system, but rather to ensure it is the right size and has the right tools in order to accomplish its mission, just like any other government agency. 

Respect practitioners. Both the right and the left in American political life have often been guilty of communicating contempt for the police officers, attorneys, probation officials, judges and other frontline practitioners who are responsible for the day-to-day administration of the criminal justice system. Many reform efforts never seek their input or are explicitly designed to limit their discretion and make their jobs more difficult. Indeed, many now refuse to even credit the system with seeking justice, preferring instead the “criminal legal system” label. It is difficult to attract a talented, motivated workforce to government agencies that have been relentlessly derided as wasteful and oppressive. The next big idea should be grounded in the experience and wisdom of those who are actually doing the work of operating the justice system. 

Strengthen our social fabric. As essential as the justice system is to the healthy functioning of society, it cannot be our sole, or even our primary, mechanism for creating safe communities. The traditional apparatus of the justice system has a role to play, but so do other government agencies, not to mention civic groups, businesses and local residents. As Elizabeth Glazer and Patrick Sharkey have articulated, the basic idea is relatively straightforward: Neighborhoods where people feel connected to one another — and to important civic organizations — are neighborhoods that can produce safety without a reliance on heavy-handed enforcement. 

Over the years, a number of thinkers and reformers have explored this idea using vocabulary like “informal social control,” “social cohesion,” “collective efficacy” and “community justice.” Robert Sampson has been a particularly important voice, but a number of others have made valuable contributions, highlighting, for example, the vital role that nonprofit organizations play in neighborhood life (Sharkey) and the importance of prominent community voices clearly and directly articulating that violence is unacceptable (David Kennedy).  

Despite all of this work, both intellectual and programmatic, the value of strengthening our social fabric as a crime-fighting strategy has not seeped into popular consciousness. Perhaps the next big criminal justice idea will be some sort of synthesis or new articulation of all of the work that has already been done around this concept, communicating it in a way that penetrates the consciousness of political leaders, editorial writers and philanthropic investors. (Indeed, at Vital City one of our goals is to play a role in this process, helping to identify, translate and disseminate new ideas into the criminal justice field.)

These are all just my own personal hopes, of course — your list will no doubt look different. Whatever the future holds, let’s hope that the next big idea emerges soon. It is high time for a break from the current criminal justice conversation, which too often devolves into an increasingly unproductive debate over whether we need more or less policing.