A 21st Century Criminal Justice System

In my last column, I hope that I left readers to at least agree that Maryland’s Criminal Justice System needs an unprecedented and thorough review.  This column’s purpose is to develop that theme and to suggest both further reasons to move that project forward and how to conduct an examination that will produce ideas, policies and practices which can effectively and most importantly systematically address the 21st century challenges that lie ahead.

The 1980’s, the 1990’s and even the first decade of this 21st century which I witnessed as a lawyer participating in politics and then a Judge without a partisan thought in his head, produced at best a series of ad hoc executive judicial and legislative responses to some theoretical causes of crime particularly urban crime.  Examples of this included as

The Economist Magazine pointed out recently, John Dilulio, a conservative American academic predicting in the 1990’s that “a new breed of super-predators, kids that have no respect human life and no sense of the future” would terrorize Americans indefinitely.  Fortunately he turned out to be wrong and was later required to retract his prediction in order to preserve a small quantum of credibility.

Dilulio was certainly not alone on the right.  Other “experts” as well as “Talking Heads” predicted crime would keep rising as a result of the decline of the traditional nuclear family and growing ethnic diversity even in the face of the dawning reality as the 21st century began that in fact crime was and remains today clearly on the wane in Maryland, in the United States and around the world.  This is undeniably occurring notwithstanding pockets of resistance to that statistically documented trend in parts of certain urban and suburban centers.

The “right” was clearly not alone in the finding that the social theories which they painstakingly formulated and espoused to explain the “rising crime rate” in the 1980’s and 1990’s were inapposite to comprehend the reality of reduced crime generally as well as the greater safety of even many urban centers as the 21st century began and progressed.  The “wisdom” of many social theorists of the left that crime could never be curbed unless inequality was reduced and recently that the “Great Recession” would interrupt the downward trend of the crime rate now look just as wrong and even as silly as the right wingers’ theories that being brought up by one parent and playing a lot of computer games would unleash an unstoppable crime wave.

Why have our best social scientists on both the left and the right been so consistently wrong about what was happening and why it was happening in the field of criminal justice?  Nicholas A. Christakis, a physician and sociologist at Yale University and Co-Director of the Yale Institute for Network Science offers a plausible explanation.

In a nutshell Dr. Christakis suggests that the social sciences have not kept pace with the natural science in “evolving with the times.”  Specifically he cites “the perfection of cloning techniques giving rise to the field of stem cell biology, advances in computer science contributing to “systems biology” as examples of a general trend toward the development of whole new fields of inquiry as well as university departments and majors resulting from fresh discoveries and novel tools in the natural sciences.

Contrast this with the social sciences which Dr. Christakis opines have “stagnated.”  In noticing the lack of creativity and innovation in the social sciences generally, Dr. Christakis points out that “they offer the same set of academic departments and disciplines that they have for nearly 100 years: sociology, economics, anthropology, psychology, and political science.

This results in politicians and policy-makers instinctively ignoring social scientists and their opinions in favor of politically popular positions designed to appeal to their constituents’ prejudices and predilections because social scientists’ opinions are currently timeworn and frankly boring.  This results in a lack of confidence in and respect for these opinions.  Examples include continuing to study monopoly power, racial profiling, and health inequality.  We already know monopoly power distorts markets, people are racially biased, and therefore profile people who don’t look like them and illness is unequally distributed to social class.  Repeatedly observing, studying, and talking about these well established phenomenon does not help to fix or change them.

Instead Christakis urges, as does thus writer that social scientists “redeploy their time and resources to new fields such as social neuroscience, behavioral economics, evolutionary psychology and social epigenetics.  These disciplines are comparatively new and in some respects controversial.   Not coincidentally many lie at the intersection of the natural and social sciences.

These new interdisciplinary fields have the potential to provide answers to questions that heretofore have seemed inexplicable and to articulate areas of inquiry not yet discovered.  For example a better understanding of the structure and function of human social networks might help us to understand which individuals within social systems have an outsize impact on the spread of ideas and the governance of institutions such as our correctional facilities.  It might even tell us how to avoid future takeovers of correctional facilities by gangs or maybe even how to breakup or prevent the creation or maintenance of gangs in these facilities and elsewhere. Who knows- it might even explain the irrational behavior of everyone from legislators to hardcore criminals?

We have already seen in the last 25 years the results of the lack of forward movement in the social sciences.  Politicians, policy-makers and even judges in all three branches of government have instinctively resorted on an ad hoc basis for essentially political reasons to their own prescriptions for what they think their gerrymandered constituents believe ails the criminal justice system. These arbitrary measures have included harsher prison sentences, particularly long mandatory sentences, the “War on Drugs,” unnecessary racial profiling, “Stand Your Ground” statutes, potential invasions of privacy and other measures which as time marches on are being shown to not only not effectively address the problems they supposedly were created to fix, but in fact to be counterproductive by creating additional problems of their own.

It is therefore time for our best and brightest to use the cutting edge social science tools and disciplines available to them as this century unfolds to systematically modernize our criminal justice system so that it can address the breadth and complexity of the problems that we face in the 21st century.  The best way to begin that process is through a joint initiative of the Executive, Legislative and Judicial Branches of our state government along with support from the Maryland State Bar Association to empanel a Select Committee or Commission to examine the future of the institutions and operations of the criminal justice system in Maryland.

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