Arwade, Jenny

Freeman, Jim

English

University of Denver

Denver Law Review Volume 94 Issue 3 Symposium - Justice Reinvestment Article 2 December 2020 Vol. 94, no. 3: Foreword Jenny Arwade Jim Freeman Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Jenny Arwade & Jim Freeman, Vol. 94, no. 3: Foreword, 94 Denv. L. Rev. 445 (2017). This Front Matter is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. FOREWORDJENNY ARWADEt & JIM FREEMANttIn recent years, a remarkable consensus has developed in the UnitedStates, among political leaders from across the ideological spectrum aswell as the general public, that our justice system is dramatically over-sized.' There is now broad recognition that over the last few decades, theUnited States has invested excessive resources on a narrow set of "tough-on-crime" strategies to address not only public safety issues but also publichealth concerns such as the effects of poverty, mental illness, and drug2use.As described in the report The $3.4 Trillion Mistake: The Cost ofMass Incarceration and Criminalization, and How Justice ReinvestmentCan Build a Better Future for All, the U.S. already had an expansive jus-tice system in the early 1980s.3 For example, if police, corrections, judi-cial/legal, and immigration enforcement expenditures are combined, theUnited States totaled $90 billion in justice spending in 1982 (note that alljustice spending figures have been adjusted for inflation and presented int Jenny Arwade is Co-Executive Director of Chicago-based Communities United (CU),which brings together young people and adult allies to advance social change and systems transfor-mation through a racial justice framework. CU's approach is centered on the creation of intentionalhealing and justice spaces, transformative civic engagement and leadership development approaches,and the development of broad-based alliances. Jenny has sixteen years of organizing experience duringwhich time she has supported young people and adult allies in dismantling the school-to-prison pipe-line, addressing mass incarceration and advancing community-led justice reinvestment efforts, andpromoting health and housing equity. Jenny is a graduate of Princeton University, serves as Vice BoardChair of the Edward W. Hazen Foundation, and is a field representative on the Board of Advisors forthe Funders Collaborative on Youth Organizing.tf Jim Freeman is the Founder and Executive Director of Grassroots Action Support Team,which assists community-based organizations and coalitions in their efforts to create large-scale, trans-formative social change around key social, racial, gender, and economic justice issues. He assistsgrassroots-led efforts to address mass incarceration, promote justice reinvestment, and dismantle theschool-to-prison pipeline, among other issues. Freeman was formerly a Senior Attorney at Advance-ment Project where he directed the Ending the Schoolhouse-to-Jailhouse Track project. He is a grad-uate of Harvard Law School and the University of Notre Dame and has been an Adjunct Professor ofLaw at the Georgetown University Law Center and the University of Denver Sturm College of Law.I. See, e.g., Alex Altman, Koch Brother Teams Up with Liberals on Criminal Justice Reform,TIME (Jan. 29, 2015), http://time.com/3686797/charles-koch-criminal-justice; Russell Berman, TheMoment for Criminal-Justice Reform?, ATLANTIC (July 10, 2015), http://www.theatlantic.com/poli-tics/archive/2015/07/congress-obama-criminal-justice-reform/398045.2. See, e.g., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS., THE GROWTH OFINCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES 15-16 (JeremyTravis et al. eds., 2014); Criminal Justice Facts, SENT'G PROJECT, http://www.sentencingpro-ject.org/criminal-justice-facts (last visited Jan. 28, 2017).3. CMTYS. UNITED ET AL., THE $3.4 TRILLION MISTAKE: THE COST OF MASS INCARCERATIONAND CRIMINALIZATION, AND HOW JUSTICE REINVESTMENT CAN BUILD A BETTER FUTURE FOR ALL7 (2016), http://www.reinvest4justice.org/report [hereinafter THE $3.4 TRILLION MISTAKE].445446 DENVER LAW REVIEW [Vol. 94:32016 dollars).4 Indeed, our incarcerated population then, 621,885, wouldstill rank as fourth highest in the world today, behind only China, Russia,and Brazil.5 Nevertheless, we continued to aggressively expand both thesize and role of our justice system. Thus, by 2012, total justice spendinghad increased by 229% to nearly $297 billion. 6 Cumulatively, over thethirty-year period from 1983 to 2012, we spent $3.4 trillion more on thejustice system than we would have if spending had remained steady since1982.7Alongside the growth in spending has been a dramatic increase in thenumber of people who are under the control of the justice system. As of2013, there were nearly eight million adults and youth behind bars orwithin the probation and parole systems in the United States.8 In otherwords, one in forty U.S. residents was either in prison, in jail, on probationor parole, or otherwise under control of the justice system.9 For Black and4. JUSTICE MGMT. Div., U.S. DEP'T OF JUSTICE, BUDGET TREND DATA: FROM 1975THROUGH THE PRESIDENT'S 2003 REQUEST TO THE CONGRESS 105 (2002), https://www.jus-tice.gov/archive/j md/1975_2002/2002/pdf/BudgetTrand.pdf (citing immigration enforcement spend-ing for 1982-2002); TRACEY KYCKELHAHN, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,JUSTICE EXPENDITURES AND EMPLOYMENT, FY 1982-2007, at 2 (2011), https://www.bjs.gov/con-tent/pub/pdf/jee8207st.pdf (citing police, corrections, and judicial and legal services expenditures).The figures were adjusted to 2016 dollars using the CPI conversion tables produced by Professor Rob-ert Sahr. Individual Year Conversion Factor Tables, OR. ST. U., http://liberalarts.oregon-state.edu/spp/polisci/faculty-staff/robert-sahr/inflation-conversion-factors-years- 1774-estimated-2024-dollars-recent-years/individual-year-conversion-factor-table-0 (last visited Feb. 11, 2017). Notethat some civil judicial functions are included in the judicial/legal category (for example, state appel-late and supreme courts hear both civil and criminal cases, and those expenditures were not differen-tiated by the Bureau of Justice Statistics). However, the Bureau of Justice Statistics figures do not takeinto account many additional spending areas. See CHRISTIAN HENRICHSON & RUTH DELANEY, VERAINST. OF JUSTICE, THE PRICE OF PRISONS: WHAT INCARCERATION COSTS TAXPAYERS 2 (Jules Ver-done ed., 2012), http://archive.vera.org/sites/default/files/resources/downloads/price-of-prisons-up-dated-version-021914.pdf.5. Highest to Lowest - Prison Population Total, WORLD PRISON BRIEF, http://prisonstud-ies.org/highest-to-lowest/prison-population-total?fieldregion taxonomy-tid=All (last visited Jan.29, 2017).6. THE $3.4 TRILLION MISTAKE, supra note 3, at 7.7. Id8. LAUREN E. GLAZE & DANIELLE KAEBLE, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OFJUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2013, at 1 (2014),https://www.bjs.gov/content/pub/pdf/cpus I 3.pdf (counting adults living under supervision by proba-tion or parole and those in local, state, and federal detention facilities); ERINN J. HERBERMAN &THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PROBATION ANDPAROLE IN THE UNITED STATES, 2013, at 1 (rev. 2015), https://www.bjs.gov/con-tent/pub/pdf/ppusl3.pdf (counting adults in probation, parole, or any other post-prison supervision(note that Oklahoma did not report 2103 probation data and thus its 2012 data was used)); JOHN F.SIMANSKI, OFFICE OF IMMIGRATION STATISTICS, DEP'T OF HOMELAND SEC., IMMIGRATIONENFORCEMENT ACTIONS: 2013, at 1 (2014), https://www.dhs.gov/sites/default/files/publica-tions/ois enforcement ar 2013.pdf (counting detained aliens); EZACJRP: Year of Census by Sex forUnited States, OFF. OF JUV. JUST. & DELINQ. PREVENTION, https://www.ojjdp.gov/ojst-atbb/ezacjrp/asp/display.asp (last visited Feb. 11 2017) (counting juveniles detained, committed, orsupervised in 2013).9. Data: National Population Totals Tables: 2010-2015, U.S. CENSUS BUREAU,http://www.census.gov/data/tables/2015/demo/popest/nation-total.html (last visited Feb. 5, 2017).2017] FOREWORD 447Latino residents, it was approximately one in eighteen and one in thirty-four, respectively, compared to one in fifty-five White residents."oHowever, despite all of the additional resources devoted to the ex-pansion of the justice system, it is not at all clear that this approach hasbeen effective at promoting public safety." Indeed, there is substantial ev-idence demonstrating that the harms caused by this approach have far ex-ceeded whatever benefits have been realized.12 That is especially truewithin the communities of color where law enforcement resources havebecome highly concentrated.'3 Moreover, the evidence suggests that thepolicies that have produced mass incarceration and criminalization are farless effective than other options available to us.14Fortunately, some progress has been made in addressing this misal-location of resources.'5 In recent years, several "justice reinvestment" ini-tiatives have been successful in beginning to "right-size" and reprioritizeour justice system, and reallocate resources to address other community10. THE $3.4 TRILLION MISTAKE, supra note 3, at 3.11. See, e.g., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS., supra note 2, at 16; RYAN S.KING ET AL., THE SENTENCING PROJECT, INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 8(2005), http://www.sentencingproject.org/wp-content/uploads/2016/01/Incarceration-and-Crime-A-Complex-Relationship.pdf.12. See sources cited supra note 3. See generally About, VERA INST. JUST.,https://www.vera.org/about (last visited Feb. 11, 2017); About the CSG Justice Center, COUNCIL ST.GOVERNMENTS JUST. CTR., https://csgjusticecenter.org/about-jc (last visited Feb. 11, 2017); About theJustice Policy Center, URB. INST., http://www.urban.org/policy-centers/justice-policy-center/sound-strategies-combating-crime-and-promoting-public-safety (last visited Feb. 11, 2017); About Us,SENT'G PROJECT, http://www.sentencingproject.org/about-us (last visited Feb. 11, 2017); Mass Incar-ceration, ACLU, https://www.aclu.org/issues/mass-incarceration (last visited Feb. I1, 2017); PublicSafety Performance Project, PEW CHARITABLE TR., http://www.pewtrusts.org/en/projects/public-safety-performance-project/about (last visited Feb. 11, 2017).13. THE $3.4 TRILLION MISTAKE, supra note 3, at 10-13; see also Intro, CHICAGO'S MILLIONDOLLAR BLOCKS, http://chicagosmilliondollarblocks.com/#section-1 (last visited Feb. 11, 2017);Publications, JUST. MAPPING CTR. (Oct. 5, 2010), http://www.justicemapping.org/archive/cate-gory/news.14. CONNIE RICE ET AL., ADVANCEMENT PROJECT, A CALL TO ACTION: LOS ANGELES' QUESTTO ACHIEVE COMMUNITY SAFETY 3 (Mike Areyan et al. eds., 2013), http://www.advancementpro-ject.org/resources/entry/a-call-to-action-los-angeles-quest-to-achieve-community-safety; JAMESAUSTIN ET AL., ENDING MASS INCARCERATION: CHARTING A NEW JUSTICE REINVESTMENT 2-3, 17-18 (2014), http://www.sentencingproject.org/wp-content/uploads/2015/12/Ending-Mass-Incarcera-tion-Charting-a-New-Justice-Reinvestment.pdf; WILLIAM CHRISTESON ET AL., FIGHT CRIME: INVESTIN KIDS, PROVEN INVESTMENTS IN KIDS WILL REDUCE CRIME AND VIOLENCE (2014), https://strong-nation.s3.amazonaws.com/documents/37/3293c393-2978-4bc6-aa2-9d8fb62430cf.pdf; COUNCIL OFECON. ADVISORS, ECONOMIC PERSPECTIVES ON INCARCERATION AND THE CRIMINAL JUSTICESYSTEM 52-54 (2016), https://obamawhitehouse.archives.gov/sites/de-fault/files/page/files/20160423_ceaincarcerationcriminal justice.pdf; KiM GILHULY ET AL.,HUMAN IMPACT PARTNERS, REHABILITATING CORRECTIONS IN CALIFORNIA: THE HEALTH IMPACTSOF PROPOSITION 47, at 3-5 (2014), http://www.humanimpact.org/downloads/hia-full-report; SARAHLYONS & NASTASSIA WALSH, JUSTICE POLICY INST., MONEY WELL SPENT: How POSITIVE SOCIALINVESTMENTS WILL REDUCE INCARCERATION RATES, IMPROVE PUBLIC SAFETY, AND PROMOTE THEWELL-BEING OF COMMUNITIES 54-58 (2010), http://www.justicepolicy.org/images/upload/10-09_REPMoneyWellSpent_PS-DC-AC-JJ.pdfP see sources cited supra note 3; see also PresidentBarack Obama, Weekly Address: Building a Fairer and More Effective Criminal Justice System,WHITE HOUSE (Apr. 23, 2016), https://obamawhitehouse.archives.gov/photos-and-video/video/2016/04/23/weekly-address-building-fairer-and-more-effective-criminal-justice.15. See, e.g., THE $3.4 TRILLION MISTAKE, supra note 3, at 19.DENVER LAWREVIEWneeds.16 However, despite this undeniable progress, it is vital that theseinitial steps be kept in perspective. The advances made thus far representonly a tiny fraction of the overall distance that must be traveled if we areto address our oversized justice system while actively building safer andhealthier communities across the country.17To cover the rest of that distance, we submit that there are four es-sential steps that must be taken:1. Justice reinvestment initiatives must be pursued at the federal,state, and local levels.Of the nearly $297 billion spent nationally on the justice system in2012, local budgets accounted for 45% of the total, state budgets com-prised another 30%, and federal spending contributed 25%.'8 All three ar-eas have expanded dramatically over the past few decades and will requireattention if we are to effectively reform our justice system.192. Future justice reinvestment initiatives should address all areasof excessive justice spending.Previous justice reinvestment initiatives have focused almost exclu-sively on reducing corrections spending.20 However, that represents only29% of what the United States spent on the justice system in 2012.21 Suc-cessful justice reinvestment will require a comprehensive approach thatalso addresses over-spending on police (45%), judicial/legal functions(20%), and the fastest-growing component of the justice system: immigra-tion enforcement (6%).223. Justice reinvestment initiatives should prioritize the meaning-ful involvement of the communities that have been most af-fected by mass incarceration and criminalization.Justice reinvestment efforts can have profound "on-the-ground" con-sequences, yet one of the key weaknesses of many existing efforts is thelack of participation by individuals and organizations from the most af-fected communities.23 Creating more inclusive processes, with ample op-portunities for meaningful grassroots involvement, is critical to ensuringthat justice reinvestment efforts are able to accurately diagnose the mostcritical community needs and esign appropriate and community-specificsolutions.16. Id. at 18-19.17. Id. at 19.18. Id. at 9.19. Id.20. Id. at 11.21. Id.22. Id.23. Id. at 5; AUSTIN ET AL., supra note 14, at 19.448 [Vol. 94:3FORE WORD4. A substantial portion of the savings realized should be rein-vested, not in other areas of the justice system, but rather in ad-dressing the root causes of unsafe and unhealthy communities,particularly in the communities that have been most affected bymass incarceration and criminalization.To date, many justice reinvestment efforts have not produced sub-stantial reinvestment, and many of the funds that have been reinvested24have gone toward other programs within the justice system. As such,they neglect the harm caused by decades of mass incarceration and crimi-nalization policies as well as the root causes of crime and violence.To create safe communities, we must of course be able to respondeffectively to violence and crime. But the most effective response to suchactions need not involve the justice system, and our understanding of pub-lic safety should not begin nor end with the justice system.25 We must rec-ognize that communities cannot be safe if:* There are not enough good jobs and affordable housing opportu-nities for the people who need them;* Children are not being provided with high-quality educationalopportunities, wraparound supports, and access to good after-school and employment opportunities when needed;* There are significant unmet mental, physical, and behavioralhealth needs;* They are facing the threats posed by environmental degradationand climate change; and* There is deep social, economic, and political inequality withinthem.26Addressing these basic needs will result in far less crime and violenceand far fewer people entering the criminal justice system, yet we have con-tinually neglected these other key components of safety.27 However, if weare truly to end the devastating cycle of crime and incarceration that con-tinues to plague communities all across the country, we must stop usingso many of our resources to merely respond to crime and the symptoms ofunhealthy communities and instead focus more on preventing crime andaddressing its root causes.There are many who will be resistant to the type of robust and com-prehensive justice reinvestment initiatives described above. In particular,24. THE $3.4 TRILLION MISTAKE, supra note 3, at 19.25. Id. at 14.26. Id.27. Id.4492017]DENVER LAW REVIEWmany policymakers will be reluctant to support the substantial reallocationof resources from the justice system to meeting other acute needs, espe-cially within the communities of color that have been most affected byoverinvestment in the justice system. What they must recognize is that weare already making massive investments in those communities. However,instead of investing appropriately in the education, employment, or healthof individuals from those communities, we have been allocating far too-28many of our resources to their criminalization and incarceration.So we face a choice. Do we continue to invest public dollars in de-structive mass incarceration strategies that overwhelmingly affect ourmost vulnerable and marginalized residents? Or do we seek a new pathforward that is focused on making positive investments in the long-termhealth and safety of our children, families, and communities?It is our hope that the articles that follow can help to chart such a path.28. Id. at 20.450 [Vol. 94:3

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