The Tipping Point for Criminal Justice Reform

Over the summer, Professor Rachel Harmon and other schol­ars released a list of reforms to address problems in American policing. The authors’ report, “Changing the Law to Change Policing: First Steps,” explains why the structure and gover­nance of policing should be re­thought, while looking at the appropriate role of police in achieving public safety.  

“We have a long way to go in figuring out how to achieve public safety fairly and with less harm,” Harmon said. “But in the meantime, there are immediate legal changes that can make things better.” 

The report’s recommendations include eliminating qualified immunity for police, establishing national le­gal standards for use of force, and the development of accountability systems, such as the use of inspectors general, on the local level. 

Harmon is among the authors who are also reporters for the American Law Institute’s Principles of the Law: Policing, which works with advisers from across the ideo­logical spectrum to draft proposals to govern policing.   

Her article “Why Arrest?,” published in 2016 in the Michigan Law Review, argues that arrests are not es­sential to policing in most cases.

In another work, “Promoting Civil Rights Through Proactive Policing Reform,” published in 2009 in the Stanford Law Review, she advocates for a more aggres­sive federal enforcement of police departments for civil rights violations — which she says could be achieved through calculated lawsuits and offering “safe harbor” for departments actively pursuing compliance.

Harmon is a leader in the field of police regulation. She teaches in the areas of criminal law and procedure, policing and civil rights, and often advises nonprofits and police departments on legal issues involving the police. She also helped found The Fountain Fund, a nonprofit that provides low-interest loans and financial counseling to people who have been incarcerated. She served as a law enforcement expert for an independent review of the events of Aug. 11-12, 2017, in Charlottesville.

Harmon moved into academia in 2006 after spend­ing eight years as a federal prosecutor in the Criminal Section of the U.S. Department of Justice’s Civil Rights Division and the U.S. Attorney’s Office for the Eastern District of Virginia. She is the Class of 1957 Research Professor of Law.   

Juveniles

Most juveniles convicted of crimes do not need to be housed in the juvenile system.

The juvenile justice system has traditionally been an early stop in the school-to-prison pipeline. How a youth is handled may make the difference between a productive adult and an imprisoned one.

Professor Andrew Block recently rejoined the faculty after serv­ing for five years as director of the Virginia Department of Juvenile Justice. There, he instituted major reforms while in his official role, including reducing the number of youth in state facilities by almost two-thirds, closing two state correctional facilities, and securing legislative support to reinvest savings from those closures into a network of services for children and their families.

“We were able to really transform a lot of the work of the agency,” Block said. “We implemented evidence-based practices and treat­ment programs across Virginia, and hit all-time lows for numbers of new cases coming into the system, numbers of youth on probation and the numbers of youth in locked facilities.”  

He teaches the class Children and the Law, and continues to speak and write about juvenile justice reform. 

Block is also currently serving as vice chair of Gov. Ralph Northam’s Commission to Examine Racial Inequity in Virginia Law. In the spring, student research assistants work­ing with him provided commission members with an extensive summary of their research about racial disparities in various aspects of life in Virginia, as well as a set of policy recom­mendations that will help inform future action to address the disparities. Already, historic racist language in state law has been removed because of the work of the commission. 

More recently, Block and his students have been tackling police and criminal justice reform. Block launched the State and Local Government Policy Clinic at the Law School this fall, and students are participating in the next phase of the commission’s work.

Juries

It’s not only possible, but it’s time, to end racial discrimination in jury selection.

Often when the public thinks of racial disparity in the criminal justice process, they think of the race of the accused. But the research of new faculty member Thomas Frampton also points to racial disparity among those who weigh in on guilt and innocence.

For his 2018 paper “The Jim Crow Jury,” published in the Vanderbilt Law Review, Frampton examined more than 13,000 peremptory strikes in recent criminal trials in Louisiana, which he says demonstrate that race continues to drive the selection of jurors. In addition, he studied the racial breakdown of 199 nonunanimous verdicts.

“The data I was working with offered an unprecedented measure of how race affects jury deliberations: viewing the same evidence in actual courtroom settings, black and white jurors regularly came to starkly different conclusions about guilt and innocence,” he said. 

The paper called for aggressive measures to counter racial bias in the jury system” and declared that “relics of the original Jim Crow jury era — nonunanimous juries should be declared unconstitutional.

On the latter count, the U.S. Supreme Court agreed. In 2020, the court cited his paper twice in Ramos v. Louisiana, affirming that jury verdicts in criminal trials must be unanimous.

Informants

States should reduce or end the use of jailhouse informants.

The use of jailhouse informants, or “snitches,” is common nationwide in the most serious criminal cases, including death penalty cases. Of the 123 death row exonerations to date, 17% involved the use of jailhouse informants in the original trial, according to Professor Deirdre Enright ’92, who co-directs the Innocence Project at UVA Law.

“Prosecutors are allowed to dangle potential freedom to the most incentivized individuals in exchange for inculpatory testimony,” Enright said. “Were the defense to offer anything of value to a witness, they would surely face discipline or dismissal by the bar.”

Correcting the problem in Virginia is on the Innocence Project’s policy agenda for the year ahead. The group is working on a bill that would establish a statewide database to track the use of jailhouse informant testimony. Enright, co-director Jennifer Givens and staff attorney Juliet Hatchett ’15 will oversee student efforts in coordination with the New York Innocence Project.

Bail Reform

Progressive bail reform has little downside and could be instituted more widely.

A paper by Professor Megan Stevenson, “Bail, Jail and Pretrial Mis­conduct: The Influence of Prosecutors,” authored in 2019 and updated this year, examines bail reform measures under Philadelphia Dis­trict Attorney Larry Krasner, who is a leader in the progressive pros­ecution movement.  

“Dozens of jurisdictions across the country are engaging in bail reform, but there are concerns that reducing monetary incentives will increase pretrial misconduct,” Stevenson and co-author Aurélie Ouss of the University of Pennsylvania write about why they chose to study outcomes in Philadelphia.

Krasner’s office no longer requires bail to be set for misdemeanor offenses, for example, although a judge still has the final say. Stevenson found that such discretionary measures have had a positive impact, while not resulting in spikes in crime or significant increases in defendants failing to show up in court.

In fact, with a 22% increase in the likelihood that a defendant would be released with no monetary or supervisory conditions, there appeared to be no statistically significant downside. 

“This provides a unique opportunity to evaluate the primary justification for cash bail: that it provides incentive for released defendants to appear in court,” they state. “We find no evidence that cash bail or pretrial supervision has a deterrent effect on failure-to-appear or pretrial crime.” 

Two of Stevenson’s other research papers were cited by the U.S. Court of Appeals for the Fifth Circuit as part of the 2018 decision in O’Donnell v. Harris County, Texas, et al. The court reaffirmed a district court ruling that the county’s bail system for misdemeanor offenses violated due process because it favored those most able to pay.

At UVA, Stevenson teaches Criminal Law as well as courses on evidence-based criminal justice reform and statistics for lawyers.

Pretrial Detention

Pretrial detention should be minimized and standardized across all 50 states.

Like his colleague Megan Stevenson, Professor Josh Bowers understands the many problems with fairness associated with pretrial detention. Bowers is the lead reporter for the Uniform Law Commission’s Pretrial Release and Detention Committee. He also served as a staff attorney for the Bronx Defenders early in his career.

In July, the commission released its model legislation for states under the title The Uniform Pretrial Release and Detention Act, which is meant to guide judicial decision-making. The overriding goal of the proposal is to eliminate wealth-based disparities in pretrial release and to ensure that the liberty of individuals is only restricted, after a rigorous process, to the extent required by a state’s legitimate pretrial interests.     

The act also compels police, in some circumstances, to use citations instead of arrests.

“Our committee was a bipartisan group of academics, judges and lawyers, including prosecutors and defense attorneys,” Bowers said. “We represented a diverse set of viewpoints, but ultimately came together to produce an innovative template for state-level statutory reform, prioritizing pretrial release and minimizing the degree to which poverty leads to detention.” 

Bowers is currently working on the article “

What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life,” which examines what it means to “defund” the police. In addition to his scholarly work, Bowers was a founding member of the city of Charlottesville’s recently formalized Civilian Review Board, which provides oversight of the Charlottesville Police Department. He is the F. D. G. Ribble Professor of Law. 

Hate Crimes

Enforcement of damages against hate crimes should be more routine, and in proportion to the animus exhibited.

When thinking about criminal justice reform, one should con­sider the power of sanctions to influence behavior. Professor Andrew Hayashi asserts that preventing hate crimes will require doing more to address the animus behind the acts — and using economics in a way that currently isn’t being applied. 

Hayashi wrote his 2019 paper “The Law and Economics of An­imus” in part, he said, because prejudiced people continue to lash out, and the current methods of addressing the problem aren’t working. He is an expert in behavioral economics, which combines economics with psychology. 

“The existence of animus is not an economics problem — it’s a spiritual or psychological problem,” Hayashi said. “But the fact that people act on their animus is an economics problem. Economics is about understanding how people respond to incentives, and so deterrence is a natural place for the use of economics.”

Forcing an offender to pay damages to his victim is the first prong of Hayashi’s plan because it goes toward meaningfully countering the intent. 

“States should make it easier to allow for damage recoveries in the case of hate crimes,” he said. “Damages are better than fines or imprisonment in this way. They are especially unpleasant for people with animus for their victims because it means paying money to the person they hate.” 

As the second prong of his plan, Hayashi recommends the development of community funds that could serve as a form of what he calls “solidarity deterrence.”

The money could be applied immediately after a crime to begin mitigating the impact of the harm. 

As an example, he said, an anti-immigrant attack could be countered by the community channeling money to groups that help people immigrate legally. 

Hayashi is the Class of 1948 Professor of Scholarly Research in Law and director of the Virginia Center for Tax Law.   

Officer Errors

Officer-involved fatalities should be investigated the systemic way that medical mistakes and plane crashes are.

When someone dies from a medical mistake or an airplane crash, a team of professionals comes together and looks at all contributing factors, not just the actions of the doctor or the pilot. In these fields, such accidents are known as “sentinel events. 

Professor Barbara Armacost ’89, a former nurse, says the investigation and prosecution of officer-involved shootings should be the same. 

Currently, these inquiries focus almost exclusively on the actions of the officer who pulled the trigger with the public rightly seeking accountability for inappropriate use of force. But she sees a deeper problem with such a narrow focus, as indicated in the title of her paper on the subject: “Police Shootings: Is Accountability the Enemy of Prevention?,” published last year in the Ohio State Law Journal. 

By only looking at the actions of the officer, or officers, in question, other fac tors or errors that contributed to the shooting may go unaddressed.

“We need to look beyond the limited time frame embraced by the current legal standard and view police-involved shootings as organizational accidents, writes Armacost, who is an expert in criminal justice, criminal procedure, torts, and race and law. 

Armacost references the tragic death of Tamir Rice to demonstrate how systems-oriented, sentinel event review might be employed to investigate questionable police-involved shootings. In 2014, Officer Timothy Loehmann shot Rice, who was reported to be brandishing a weapon near a recreation center. It turned out that Rice was only 12 years old, and the weapon was a nonlethal air soft pistol. 

Police experts and investigators universally condemned Loehmann’s partner, Officer Frank Garmback, for driving up so close to a reported active shooter” — rather than stopping, taking cover and waiting for backup, as police best practices would dictate. (Garmback was suspended for 10 days for violating multiple police department policies.) 

By contrast, the investigations looking into the lawfulness of the shooting itself treated Loehmann’s position as a given. “That Garmback’s action may have increased the risk that deadly force would be necessary was deemed irrelevant to the question of whether the shooting was constitutionally allowable, Armacost says. 

The shooting was deemed lawful under the circumstances, and both officers were cleared of constitutional error. 

Additionally lost in the analysis, says Armacost, is consideration of other errors or systems weaknesses that might have contributed to the shooting, including inaccurate or incomplete information relayed to the officers by the dispatcher, breakdowns in communication, risks posed by realistic-looking but nonlethal guns, and weaknesses in police active shooter and de-escalation policies. 

Court Fees

Optional court fees may be an unexpected solution to help defendants of lesser means.

Professor Darryl Brown ’90 argues that paying a fee for a trial could work to the advantage of poorer defendants in “The Case for a Trial Fee: What Money Can Buy in Criminal Process,” published in 2019 in the California Law Review. 

Brown points out the many ways that relatively affluent defendants can “buy” advantages in the criminal process — through better legal representation, paying a fine in some cases instead of going to jail and being able to put up bail prior to trial, to name a few — whereas poorer defendants find themselves with fewer options.

He argues that adding another, optional court fee for defendants, ironically, may be the solution.

Through plea bargain agreements, defendants can reduce the costs of legal representation and the sever­ity of a possible sentence by admitting guilt to fewer or lesser charges. Prosecutors often extend the agreements with the justification that it saves the state both the time and cost of a trial. But if that motivation is sincere, Brown says, then the state shouldn’t care if a trial does or does not happen, as long as another party foots the bill. That’s where his idea comes in. Brown says that a defendant should have the option, on

ce a plea bargain is offered, to pay a trial fee and go to court on the newly limited charges only — with the stipulation that the fee will be refunded if the defendant is acquitted. Such a change, he acknowledges, would raise a number of concerns and questions, some of which he attempts to address in his paper. He calls the piece a “thought experiment” that he hopes will be further examined for its possibilities. Brown is the O. M. Vicars Professor of Law and the Barron F. Black Research Professor of Law. 

Mental Health

For many defendants with serious mental illness, providing court-ordered mental health treatment rather than sending them to jail or prison would better serve society.