It is “the civil rights issue of our time,” and it rouses activists on the left. Intended to be “colorblind,” the “great equalizer,” it fails most often wherever there is poverty.
But conservatives, too, now call it a priority. Massive public spending isn’t working, they say; “alternatives” will be nimbler.
Animated by international comparisons, which show America trailing other developed countries, Democrats and Republicans alike tout “accountability” and “smart” reforms, minimizing their disagreement over spending. “Evidence-based” measures sweep through legislatures, though not always with adequate funding.
Under fire — and increasingly monitored with cameras — are front-line public employees, whose worst mistakes cause harm to young Americans of color.
Unions break with mayors. Morale suffers, and recruiting too. But a promising “community”-based model is floated.
Cory Booker offers proposals. John Legend chimes in. Newt Gingrich seizes on the issue.
All of this is recently true of criminal justice. But long before that, it was the story of the education reform movement.
Here at The Marshall Project, we have followed with interest the budding consensus around police accountability, decriminalization, and sentencing reform. But some of the main storylines so far, we’ve noticed, are eerily familiar — from about 10, 15 years ago, when the politics of education reform were at a similar zenith.
“Many of the same constituencies we united with on education are the ones I’m collaborating with now on criminal justice,” says Senator Cory Booker of New Jersey.
Formerly a firebrand for charter schools, Booker has mostly drifted away from that issue and refocused on justice reform. But he says the two movements owe a similar debt to “conservatives, who argue that it’s a waste of potential to just warehouse a captive audience of human beings, whether in failing schools or prisons.”
Pat Nolan, the former president of Justice Fellowship and an early partner with Right on Crime, was one of those conservatives. “Those of us on the right did not for the longest time pay much attention to either education or prisons, thinking each was an unassailable function of government,” he says. “But we were soon awakened to the size and cost of both systems, and the ways in which we first started pushing for reform, on both prisons and schools, were really very similar.”
Ed reform, in its modern iteration, came on the scene in 1983 with the publication of “A Nation at Risk,” much as the recent wave of interest in police and prison reform was energized by Michelle Alexander’s 2010 best-seller, “The New Jim Crow.”
Both causes attempted to exert pressure on (and to liberate individuals from) bloated, unresponsive, self-perpetuating public institutions, and both have been embraced across party lines as ways to help the poor within an otherwise conservative political economy.
But education reform is now several years further along, in terms of both acrimony and impact, than justice reform, and its long-term results have been inconclusive1 at best. Parents are opting their children out of standardized tests in increasing numbers. Superstars like Michelle Rhee have dropped out. Even Margaret Spellings, the former secretary of education who helped win ed reform its most impressive victory, the “No Child Left Behind” Act of 2001, now calls the law a “toxic brand.”
Michelle Alexander is worried a similar up-and-down fate might await criminal justice, unless all Americans get honest about the scope of the system’s failing and the resources it will take to bring about lasting, scaleable change. “We shouldn’t be asking merely how we can be more efficient or ‘smarter on crime,’” she told The Marshall Project. “Until we muster, as a nation, a willingness to invest heavily in the communities that have suffered the most, we will find ourselves in an endless cycle of reform and retrenchment.”
So what can justice reformers learn from their school-reforming predecessors? Here are four parallels that may be instructive:
Workers and Unions
Much as holding the worst teachers accountable was an emphasis of the ed reform movement, the recent push for justice reform has leveled its most sustained outrage against underperforming, overreacting, or downright malicious cops and corrections officers.
In the wake of the past year’s high-profile police shootings, a conversation on policing has emerged that hits on all the old points made about teachers. A major focus, for example, has been how to remove the worst ones — not how to better train, equip, prepare, and reward the majority. A strong consensus has formed behind the idea of furnishing them (as is now regularly done in classrooms) with cameras, so they can be more readily evaluated. And the unions that protect them when they underperform, via labyrinthine contracts that impede swift, certain accountability, have been cast as an enemy of change.
Yet policing2, like teaching, is necessarily a mass profession. In order to fulfill need, the entry barrier — education — is low. That means that a large number of teachers and cops will never be maximally qualified or experienced.
Yet precisely because so many of them are needed, simply firing (rather than re-training) all of the below-average practitioners is not a possibility. And unless or until public policy changes, especially in regard to poor communities torn apart by concentrated unemployment, housing segregation, and chronic violence, those practitioners will keep facing some of society’s worst problems.
But like teachers, cops labor at the very bottom of the “implementation chain” of policy.
“Change is ultimately in the hands of policymakers,” says Whitney Tilson, one of the founders of Democrats for Education Reform and a board member of the KIPP charter school network. “If we actually want to change the way that education or criminal justice look in this country, we as reformers need to show at least some appreciation for how hard the jobs of teachers or cops are, and focus on the politicians.”
Randi Weingarten, president of the American Federation of Teachers, said in an interview, “On both of these issues, we’re going after the first responders to poverty — teachers and cops — instead of grappling with poverty itself.”
Poverty
Perhaps the most important similarity between the ever-intertwined school system and criminal justice system is that both are tasked with managing and taking care of those with cognitive, social, and economic deficits caused by poverty.
“Education and the justice system are what we have for indirectly dealing with the problems of poverty in the absence of directly dealing with it,” says William Kelly, a criminologist at the University of Texas. “They have to answer for all the ills of society — cognitive deficiencies stemming from poor early-childhood health and education; criminogenic behavior after growing up in an environment of lethality; alienation created by many generations of lacking social capital; adult illiteracy, etc.”
It is “our courthouses and schoolhouses,” says Kelly, “that have to absorb all of that.”
Poverty may have an even greater effect in the land of criminal justice, where police and the courts are expected to fairly, responsibly dispose of the millions of cases created by the de-institutionalization of the mentally ill and the nationwide lack of infrastructure for responding to addiction and homelessness. The prisons, meanwhile, must do the work of housing, clothing, feeding, treating, and managing those with the worst deficits of all.
But to reformers, it is easier to fix the schools or the justice system than to go after all overwhelming unfairnesses of history. Says Mike Petrilli, the president of the Fordham Institute, a think tank on education, “We have so little purchase over society. That's outside our bailiwick. But schools are under our control, and so is criminal justice.”
Both issues offer a way to break off a “silo” from the whole system, and fix it — an opportunity to care for the nation's poor by shining a brighter light on the failures of a very specific institution, without spending massively or for the long haul.
International Comparisons and Data-Driven Change
“Whatever it is we’re spending on in America isn’t working,” says Marc Levin, the director of Right on Crime, rattling off the statistics on just how many human beings the United States incarcerates compared to China, Russia, and a litany of Western nations.
It is the same rhetoric so often heard in education reform: “Just look at how far behind high-schoolers are, compared with Europe, even though we spend two to three times more on them,” says Steve Brill, the journalist who founded Court TV and writes extensively on charter schools. “It demonstrates that spending the way we do simply isn’t the right angle on this.”
As Grover Norquist, the anti-tax crusader, put it in 2011, “Spending more on education doesn’t necessarily get you more education… That’s also true about criminal justice and fighting crime.”
In arguing that schools and prisons are highly expensive but hardly effective, conservatives have successfully moved the conversation among lawmakers toward one about outputs rather than inputs. Whereas traditional liberals have long emphasized that “equal justice” will require fairer allocations of resources, the new reformers say the problem is actually not unequal funding between schools, or unequal access to representation in court. Rather, the problem is a “production function” that needs to be made more efficient, such that it can begin producing smart kids and rehabilitated ex-prisoners on the back end — no matter who comes in the front.
Levin says that the criminal justice reform movement he helped to reinvent will continue to focus more and more on this sort of data-based accountability, made famous by ed reform.
“The corrections system seems to be a decade or two behind education,” he says, and the schools are “way ahead of us in terms of keeping longitudinal data. But that’s where we’re headed — using risk assessments and drug testing to evaluate offenders before deciding how much resources to direct at them. And then using performance standards to hire and fire wardens and officers.”
Introducing Competition
Something not unlike the rise of charter schools is now unfolding in the laboratory of criminal justice.
“Smart,” “research-based” alternatives3 to incarceration are cropping up in prison reform legislation around the country, often endorsed by well-respected, center-right organizations like The Pew Charitable Trusts and promising to deliver on “best practices” that have been shown to work.
Like charters, these new alternatives — specialty courts, community-based supervision programs, probation services, halfway houses — began as testing grounds for innovation, and had the added benefit of easing the burden on the larger system. They were not initially considered the whole solution to poverty and crime, but reformers embraced them as exactly that.
Like charters, they are often privately run but partly on the taxpayer's dime. Like charters, they are nimbler than the existing institutions and serve smaller sets of people, “tailoring interventions” to individual students or offenders. Like charters, they emphasize the innovative use of technology (rapid drug tests and GPS monitoring for offenders; interactive LED screens and iPads for students). And like charters, they bolster their claims in the jargon of higher-prestige fields (business, management, empirical research).
Charter schools, too, have long been accused of “creaming”4 the best students — taking credit for successfully educating only the children who are already doing the best, while consigning those with more problematic deficits to the overburdened public schools. So far, justice reform faces a similar challenge — it has opened the doors of its highly-touted, evidence-based “alternatives to incarceration” only to the least violent, lowest-risk offenders, while the majority remain behind in the still-overcrowded jails and prisons.
David Cole, a professor of law at Georgetown University and an expert on civil liberties, says that helping people only when it is cost-free and risk-averse to do so will never be a solution to mass incarceration. “Even if we released all nonviolent drug offenders right this second,” as so many reformers have suggested doing, he says, “the United States would continue to incarcerate over 1.7 million people, which is four times higher than the rate in other Western nations.”
The Outlook
From the #BlackLivesMatter movement to the state-level achievements of Right on Crime, the new bipartisan push for criminal justice reform has indisputably focused attention on the struggles of poor, black and brown communities. Education reform, too, inspired a far more sustained discussion about the “achievement gap,” through its insistence that all Americans — not just some — be tallied on the nation’s self-assessments.
The question now, for these movements and for the communities most affected, is whether mere attention — simply being counted in grim statistics, caught on tape, their challenges exposed in the hard light of science — is enough.
As Sen. Booker puts it, “Let me be clear: We’re only in the foothills. This stain on our nation is long, it is deep, and it is wide.”
