The Executive Session on the Future of Justice Policy

The presumption of innocence has been a bulwark of the American justice system since the nation’s founding. Yet, the current scope and scale of pretrial detention prevents us from putting the principle into practice. Shockingly, the vast majority of individuals held in county jails are awaiting adjudication of the charges against them and, therefore, have not been found guilty of a crime meriting punishment. Recognizing this reality, the authors argue that the constitutionally-based presumption of innocence must be supported by a judicial presumption of liberty because the currently-operating justification for holding someone in jail prior to adjudication presumes that person has committed the offense for which they are charged.

Criminal justice practitioners tend to see disparities in arrest and incarceration as the product of racial differences in crime. The racial disparity in criminal justice involvement can thus be dismissed as beyond the control of police, courts, and service providers. The experience of the Multnomah County Criminal Justice Coordinating Council suggests concrete strategies for overcoming racial disparities, and points to the pivotal role of Criminal Justice Coordinating Councils for building racially-just criminal justice policy.

For most of the early and middle 20th century, rehabilitation guided criminal justice policies, but in the 1970s and 1980s, notions of retribution, deterrence, and incapacitation emerged as replacements and signaled a dramatic shift. Now, as we enter an era of criminal justice reform, it is time for a new set of values. Parsimony in criminal punishment, which seeks the least coercive response, can undo the damage of overreaching incarceration and serves the more fundamental values of liberty and limited government, which embody a distinctively American commitment to human freedom.

Efforts to reverse mass incarceration need to address the social conditions of poverty, racial inequality, and violence in which punitive criminal justice policy has expanded. Efforts that aim only to reduce prison populations, or neglect the harsh socioeconomic conditions in poor communities of color, will fail to sustainably reduce the burdens of over-imprisonment. A new, socially-integrative, vision of community health and economic flourishing is the best way to respond to the problem of violence in contexts of poverty and racial injustice.

The “violent offender” label has contributed greatly to the punitiveness of the U.S. criminal justice system. As correctional populations skyrocketed from the early 1970s to 2014, sentence length increased disproportionately for people convicted of violent crimes. The violent offender label poorly fits the empirical reality of violent crime, distorts notions of proportionality, fails to serve as an effective predictive tool for future violent behavior and is a serious, but often unjustified, obstacle to ending mass incarceration.