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How the concept of justice is changing in criminal law

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Criminal Law
Americans are reconsidering their approach to certain crimes, though the process is slow, and the country’s incarceration rate remains high.

On the heels of the 2018 midterm elections in the United States, Americans have demonstrated an ideological shift in the way previously-incarcerated individuals are treated, as well as a reevaluation of which activities constitute a crime.

Perhaps the biggest shift on election night came from Florida. Its Amendment 4, which would restore voting rights to individuals formerly convicted of a felony who’ve since served their sentence, passed by an overwhelming 28-point margin. Florida was previously one of four states that permanently revoked voting rights to convicted felons, but the amendment will restore voting rights to 1.5 million individuals, nearly a third of whom are African-American.

Also on election night, four states tackled the criminalization of marijuana use in some fashion, with Michigan voting to legalize the recreational use of marijuana within the state. A similar ballot measure in North Dakota failed by a significant margin.

Those are just a few recent examples of how Americans are reevaluating what justice means in the context of criminal law. The reassessment isn’t simply theoretical. Its outcome could literally change the lives of millions of people previously or currently incarcerated. It could also change the lives of those who could be incarcerated in the future if voters continue to reconsider the rights of those convicted of crimes and to decriminalize what were previously considered criminal acts.

The consequences of “Lock ’em up!”

The United States has the largest number of incarcerated citizens per capita compared to any other developed nation. Each state’s incarceration rate varies significantly. In Oklahoma, nearly one out of every 100 of its citizens is currently incarcerated; in contrast, the incarceration rate in Massachusetts is closer to one in 500 residents.

The U.S. system of incarceration has wide-reaching socioeconomic implications as well. While African-Americans make up 13 percent of the U.S. population, they comprise 40 percent of the incarcerated population.

A number of factors have contributed to the current landscape of the criminal justice system in America. The “get tough on crime” movement of the last 30 years, the flourishing of for-profit prisons, and the imposition of mandatory minimum sentencing certainly each play some role. Law schools throughout the United States have recognized these challenges, though, and law students have been taking on the task of seeking to correct them.

Maryrachel Durso is a second-year law student at the Indiana University Maurer School of Law—Bloomington and is the student director of the Inmate Legal Assistance Project, a student-run organization housed within the law school. Under the direction of Seth Lahn, an appellate attorney and law school professor, ILAP’s student volunteers assist inmates nationwide with navigating a wide variety of legal issues, including direct appeals, ineffective assistance of counsel claims, and civil rights claims.

Durso said the opportunities law students receive through ILAP provide a way for law students to strengthen their skill sets while giving inmates a way to receive legal aid.

“ILAP strives to respond to every individual who reaches out, regardless of the individual’s resources or the reason the individual is incarcerated,” Durso said. “Four times a semester, ILAP conducts visits to FCI Terre Haute, a federal prison, to meet with people who’ve written to ILAP with especially complicated legal issues. Student volunteers spend their Saturday talking with those people to gain enough information about them and their case to conduct more research on their behalf.”

Contrasting the European model

The program serves another purpose, said Durso—displaying systemic injustices occurring throughout America’s prison system. “Outside of its direct contact with incarcerated individuals, ILAP does its best to shed light on the injustices prevalent in our legal system through screening documentaries on the prison system, holding book and toy drives at Indiana University, and arranging speakers to talk to students, faculty, and staff,” Durso said.

The Bureau of Justice Statistics reports that nearly 37 percent of all prisoners who were arrested within five years of release were arrested again within the first six months following release. The incarceration rate, as well as the recidivism rate, spiked sharply in the 1980s and has continued to grow rapidly since. This has led to overcrowding in jails and prisons, leading many incarcerated people to spend their sentences in squalor.

Durso said many of the issues leading to recidivism in the United States are not present in European countries. She attributes this, in part, to opportunities available for inmates in Europe that often aren’t available for inmates in the United States.

“In many European countries, where rates of re-offense are much lower than those in the United States, inmates are allowed to dress in their own clothing, decorate their rooms, and cook their own meals, and they’re paid a reasonable amount for the work that they do,” Durso said. “Many of them can take educational classes while in prison and are encouraged to learn ways to save the money they make so that they have funds upon release. Correctional officers often have backgrounds in psychology and social work so that they can provide a therapeutic atmosphere.”

One of the best ways to curb recidivism rates in the United States, according to Durso, starts while the person is incarcerated and must continue after the person is released. “I strongly believe that, since about 95 percent of incarcerated individuals eventually return home from prison, we need to implement strategies to teach these people to be law-abiding and productive citizens and give them the power to make change in their communities.”

“By treating inmates with dignity and respect from the start,” Durso argued, “we’d be giving them something many of them may not get at home, which will build self-esteem and give them a sense of worth.”

How voting reduces crime

Three states—Iowa, Kentucky, and Virginia—require a person who’s released after serving a felony sentence to petition the court or the governor for the restoration of voting rights. Only two states allow incarcerated individuals to vote while serving a sentence.

Durso said the restoration of voting rights to convicted felons who’ve completed a prison sentence would also reduce the recidivism rate in the United States.

“Restoring the right to vote to those who’ve committed a felony would reduce recidivism,” she argued. “It has been long understood that when people are reintegrated into society and given a meaningful purpose, their chances of re-offending are greatly diminished.

“At the individual level, losing the right to vote essentially suggests that that individual’s voice isn’t important and strips that person of an opportunity to positively contribute to their community,” said Durso. “Americans who’ve been denied their voting rights may feel disconnected from society, and this lack of purpose can lead to reoffending.”

Current restrictions on the voting rights of former convicted felons have a racially-charged disenfranchisement effect as well, asserted Durso. “Disenfranchisement disproportionally affects minority voters,” she stated.

“In denying voting rights to convicted felons, the voice of minorities in the United States is even further muted,” she argued. “That can cause minority group members to feel less purpose and commit crimes themselves as a result.”

Matt Buck Matt Buck is a 2L student at the Indiana University Maurer School of Law. He graduated from Central Michigan University where he studied public policy. He is an Admissions Fellow at Indiana University and a Legal Fellow in United States Senator Todd Young's Office of General Counsel.