Wednesday, November 26, 2014


Talking about Ferguson today isn't that big of a stretch for a guy specializing in bail reform. After all, a broad definition of bail as well as the concept of pretrial justice includes an officer's decision to release or detain, and, without even talking about the contact that initiated this whole thing, a whole bunch of people probably got detained in the last couple of days and nights after finding out that the Grand Jury wouldn't indict.

But I write today as someone who used to work in all areas of the criminal justice system, and who used to try to find answers to questions arising from all decision points. That and other experience in the system causes me to write very briefly about what must now be done: a complete examination of our criminal justice system and the methods we have created, nurtured, and perhaps taken for granted over the last century, and with that examination done by a body of people who didn't create this mess to begin with.

In a recent Time Magazine, Joe Klein explains how a certain type of police training -- one that was opposed by many people embedded in the current system -- could have entirely prevented the original shooting in Ferguson. My own experience with police training has illustrated to me that some communities will never experience the tensions underlying relationships in Ferguson because of the more progressive ways they hire and train officers, but try telling that to certain police agencies who have been training the same way (or in increasingly aggressive ways) for decades. I have seen first-hand abuses with the grand jury system, but getting a sitting prosecutor to recognize that abuse -- or even the clear appearance of abuse -- is nearly impossible.

And then there's bail. I've spent eight years now talking about how unfair it is to lock people up before their trials based on how much money they have, but criminal justice officials seem content with the whole thing. I once knew an elected prosecutor who repeatedly talked about how many years of experience he had in the justice system, but when it came to improving that system he was adamantly opposed. When the jail was full, he said that a full jail wasn't his problem. When we talked about pretrial justice, he said he didn't think anything was wrong. When we mentioned research, he actually said that he didn't believe in research. His experience, it turned out, was basically in screwing things up. For decades. And guess what? When the time came to create a group of experts to look at bail reform in Colorado, they put him on (well, he kind of forced his way on, but that's another story).

We need complete reform, and we can only accomplish that reform by intentionally leaving out many of the people responsible for the current broken system. It shouldn't be too hard to realize that a "blue ribbon commission," which is designed to stop current abuses, but which is comprised of those persons who tolerated those abuses for decades, is not the answer.

The other day I had an older gentleman who had been involved in criminal justice for decades try to argue with me about what he saw were the benefits of secured money bail -- the one thing that we know keeps people in jail unnecessarily due to their inability to produce it. The same day I heard from a twenty-something legislative aide who had decided simply to take secured money bail completely out of the state statute. The difference? If the first guy didn't actually cause some of the problems that we have today, he certainly tolerated them, or maybe even worse, didn't recognize them at all. The young aide had a clean slate.

Ferguson started with a human tragedy -- the death of Michael Brown -- and I am praying for Michael, his family, the community, the police, and everyone else who want sincerely to avoid human misery and suffering at every cost. The uprising in that city and in cities across the United States in the last couple of nights is a clear signal that the people of America are upset with the way our criminal justice system is playing out, and the need for some sort of reform, So, sure, look into reform and create a group to do it. Look into police training and tactics. Look into pretrial justice. Look into the grand jury system and other prosecutor practices. But leave out the people who aren't even sure why the citizens of Ferguson are upset. Leave out the people who think that the country is overreacting. Basically, leave out the people who caused all of our problems to begin with. They had their chance.