Harvard Law & Policy Review

criminal justice reform

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Revealing the Hidden Sentence: How to Add Transparency, Legitimacy, and Purpose to “Collateral” Punishment Policy

By Joshua Kaiser

Americans think we know an awful lot about our penal system. Yet policymakers, jurists, academics, offenders, and the public alike remain largely ignorant of more than 35,000 hidden sentence laws across the nation. “Hidden sentence” refers to any punishment imposed by law as a direct result of criminal status, but not as part of a formally recognized, judge-issued sentence. Thus, both restrictions on prisoners’ rights and “collateral consequences” laws are hidden sentences; so are penalties imposed during pre-trial detention or for having a criminal record. Part I of this article uses the National Inventory of the Collateral Consequences of Conviction alongside information on offenders’ rights litigation to outline a resource for understanding this vast body of law. Part II uses these data to discuss the reality of these laws (a) as holding primary importance for offenders’ lives and the penal system as a whole, (b) as purposively enacted through legislation, administrative rules, or decisional law, and (c) as punishments—deprivations or harms imposed in response to criminal acts. Then, in Part III, this article analyzes the unique part about these punishments—their hiddenness—and the characteristics of this body of law that serve to hide it in varying degrees from public and professional view. Part IV problematizes this hiddenness, arguing it threatens both any purpose of punishment they could serve and their legitimacy according to core American principles. The article concludes in Part V by discussing the most ready means to make hidden sentence law transparent.

Click here to read the full article.

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Another Perspective on Community Policing

By Ronald E. Hampton*

Many African-Americans today believe that law and order is not being kept in their communities. The average African-American citizen is terribly dissatisfied with the police and their services in his/her neighborhood. However, in some parts of America, there is an ongoing effort to dramatically reshape the roles of both police officers and the communities they serve. This effort has been led by a handful of police officers, chiefs, criminal justice experts and community activists.

The days of the distant, aloof, and remote police officer are over—the days when the officer’s duty simply consisted of getting the information and making the arrest. This approach required little concern for dealing with the conditions that gave rise to the crime in the first place or for minimizing psychological damage to the individuals.

Community policing is much more that simply putting officers back on the beat. Community policing is a strategy that emphasizes collaboration with citizens in the identification and resolution of neighborhood problems. Community policing places the police with the citizens they are supposed to be serving. This is a radical change from the traditional police citizen relationship. Community policing calls for a paradigm shift from a mindset of “just us” to justice on both the part of the police and the community.

No longer does the community sit idly by while the police do it alone. In community policing, the citizens are an active partner in the development of crime fighting and prevention strategies. The key to understanding the concept of community policing seems to lie not with the police, but with looking at crime in a different way.

The advocates of community policing downplay statistical measures of crime. Instead, they place a premium on community perceptions. Disorderly conditions in a neighborhood may or may not show up in crime reports and numbers of arrests, but they undermine the community’s sense of confidence and hasten its decay. When you go out into the neighborhood and talk to people, you realize that their primary concern is the lack of order. Citizens are concerned with how their neighborhood appears to inhabitants and outsiders alike.

For example, when drinking youth, drugs and prostitution are rampant, the area is filled with abandoned buildings, and residents are unable to use public spaces like parks, most citizens are troubled by such disorderly circumstances. These are often the precursors of crime. In old police bureaucratic thinking, disorder is unimportant. The handling of these disorderly circumstances does not show up on statistical crime indexes. Neither does the media, politicians or the police brass, for that matter, focus on the importance of disorder—particularly when developing policies.  In addition, police officers have typically not advanced through the ranks by attacking the underlying conditions or working to solve the problems caused by disorder.

Eliminate the disorder, advocates of community policing say, and you can alleviate crime. An effective community policing concept with strong participation, trust and support from the community would give the police officer the political, moral, and social authority to work on these problems. This, in fact, would result in both the community and the police being truly empowered. Also, it would be in the best interests of the officers, as well as the citizens, to keep disorder and other problems away from the neighborhood.

 

Click here to read the articles in HLPR Volume 10.1, with the symposium topic “Policing in America on the 50th Anniversary of Miranda v. Arizona.”

 

* Ronald E. Hampton is a twenty-four year retired veteran of the D.C. Metropolitan Police Department and served as the Executive Director of the National Black Police Association for over twenty years. Currently, he is serving as the Convener/ Chair of the Institute of the Black World 21st Century Police Reform and Accountability Task Force. The mission of the task force is to identify evidence-based practices and develop recommendations related to the restructuring of law enforcement as well as criminal justice policies and practices designed to address the mistrust and extra-legal behavior exhibited by police personnel in communities of color throughout the USA.

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That’s Him, I Think; The Role of the Police in Eyewitness Identification Reform

By Chief William G. Brooks III*

In the words of U.S. Supreme Court justice William Brennan, there is “nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!'”  But we now know that such compelling evidence can be wrong.  According to the Innocence Project, of the 336 prisoners freed after DNA proved they were innocent, over 70% went to prison after an eyewitness mistakenly identified them as the offender.  In other words, faulty identifications by witnesses account for more wrongful convictions than any other cause.

Things are actually worse than they appear.  Most of those defendants were serving time for homicides and sex assaults, crimes that frequently yield DNA evidence.  If so many innocent people were serving time for these crimes, how many are in prison for crimes like robberies and shootings, where DNA evidence is scant?  The National Registry of Exonerations maintained by the University of Michigan Law School lists over 1,700 defendants whose cases have been overturned by both DNA and other methods.  And while erroneous convictions ruin the lives of innocent defendants and taint the reputation of the courts and police, they also leave true offenders on the street.  The DNA that exonerated about half of those 336 defendants identified the actual perpetrators, and those criminals were eventually convicted of committing over 140 violent crimes in addition to the ones that sent innocent people to prison.

Mistakes by eyewitnesses are not always the fault of the police; recognizing a stranger you saw only once is a difficult task, and so-called “estimator variables” such as distance, poor lighting, stress and “own race bias” can make it more so.  On the other hand “system variables,” or those procedures used by police officers during show-ups and photo arrays, can have significant impact.

I spend a lot of time these days presenting to officers in other states about science-based protocols they can employ to reduce the chance of eyewitness error. While the full scope of the reform measures is too complex to fully explore here, it includes several fundamental changes. First, officers should read specific instructions to witnesses prior to show-ups and photo arrays.  This recommendation also facilitates compliance with discovery rules that require disclosure of what the officer said to the witness prior to an identification.  Further, other procedures urge that photos be shown one at a time, and by an officer who does not know which photo is of the suspect. The recommendation that a detective not show his own photo arrays can stir the ire of veteran detectives, and it did mine ten years ago until I came to understand the compelling reasons for it. Finally, it is imperative that an officer ask a witness how certain she is of an identification as soon as it is made, before extraneous information can taint her assessment.

There are other precautions departments can take to reduce the likelihood of error. My department, for instance, never uses composites. Those transparency overlays of facial features are seldom helpful, and research has shown that the procedure of assembling one can damage the witness’s memory for the offender’s face.

The good news is that Massachusetts police have largely embraced the science.  A 2013 survey showed that about 85% of responding police departments had modern, reform-based policies.  All Massachusetts police academies are required to teach recruits research-based procedures, and training is mandated this year for every active-duty municipal police officer.

This is not an area where society can rely on the courts alone to find the truth.  That witness who testifies “that’s the one” provides compelling evidence indeed, and it is the responsibility of the police to ensure our procedures and training are supported by science.

* Chief William G. Brooks is the Chief of the Norwood, MA Police Department and is a member of the Massachusetts Supreme Judicial Court’s Standing Committee on Eyewitness Identification. Chief Brooks also presents on behalf of the Innocence Project, and received the Innocence Network’s Champion of Justice Award in 2012 for his work in eyewitness identification.