There seems to be more space—and less overlap—between conservatives and liberals on every topic these days, but justice transformation may be an exception. Is there some common ground, even common underlying values, that the different sides could come together around? Join us for a conversation with Marc Levin, Chief Policy Counsel at the Council on Criminal Justice, and founder of the Texas Right on Crime initiative, on finding middle ground on topics such as incarceration’s impact on fundamental rights, the role of restorative justice, and perhaps even agreement on shifting some current police responsibilities to other entities.
An attorney and accomplished author, Marc Levin serves as Chief Policy Counsel to the Council on Criminal Justice, a membership organization that provides a center of gravity in the field for objective analyses of research and policies. He began the Texas Public Policy Foundation’s criminal justice program in 2005 and in 2010 developed the concept for its Right on Crime initiative. In 2014, Levin was named one of the “Politico 50” in the magazine’s annual “list of thinkers, doers, and dreamers who really matter in this age of gridlock and dysfunction.” Levin has authored numerous book chapters, policy papers, and articles on criminal justice policy and serves on the National Association of Drug Court Professionals Board of Directors, Aspen Institute Criminal Justice Reform Initiative Advisory Council, and the Urban Rural Action Board of Advisors.
He has testified on criminal justice policy on four occasions before Congress and before numerous state legislatures. Levin graduated with honors from the University of Texas with a B.A. in Plan II Honors and Government and received his J.D. with honors from the University of Texas School of Law. Levin served as a law clerk on the U.S. Court of Appeals for the Fifth Circuit and Staff Attorney at the Texas Supreme Court.
As a 501(c)(3) nonprofit organization, The Aspen Institute is nonpartisan and does not endorse, support, or oppose political candidates or parties. Further, the views and opinions of our guests and speakers do not necessarily reflect those of The Aspen Institute.
Visit us online at The Aspen Institute Criminal Justice Reform Initiative and follow us on Twitter @AspenCJRI.
December 10, 2021
Copyright 2021 Aspen Institute Criminal Justice Reform Initiative
Welcome to Shades of Freedom from the Aspen Institute's Criminal Justice Reform Initiative. This week's guest is Marc Levin, Chief Policy Council to the Council on Criminal Justice.
Marc Levin (00:12):
There is a way to find consensus on criminal justice issues, and nobody wants more violent crime. Nobody wants more property crime for that matter. And at the same time, nobody wants to spend money unnecessarily. Nobody wants to restrict liberty unnecessarily, but it's a matter of finding the balance between safety and security, which is a timeless challenge.
Dr. Douglas E. Wood (00:36):
Welcome to Shades of Freedom. I'm your host Douglas Wood director of the Aspen Institute's Criminal Justice Reform Initiative. Our guest today is Marc Levin. Marc is at the forefront of criminal justice reform based on conservative principles. He is currently the chief policy council at the Council on Criminal Justice, which is a non-partisan organization and think tank dedicated to advancing criminal justice policy. Marc is also the senior advisor for the Right on Crime initiative, which is a campaign he started while at the Texas Public Policy Foundation that supports conservative solutions to Criminal Justice Reform. Over his career, Marc has testified before Congress regarding criminal justice, met with US presidents and international leaders, and was named as one of the Politico 50 in the magazine's annual lists of thinkers, doers, and dreamers who really matter in this age of gridlock and dysfunction. It's an honor to have him as a guest. Marc, welcome to Shades of Freedom.
Marc Levin (01:39):
Well, thank you for having me, Doug.
Dr. Douglas E. Wood (01:41):
Marc, what was your path to criminal justice reform? How did you get here?
Marc Levin (01:46):
Well, that's a very interesting question. I think it originally perhaps stems from my upbringing. I was very disruptive as a child and blurting out answers mainly in school and got sent to the principal's office, paddled very hard actually. And I think that I developed a distrust or at least a skepticism of authority. I think there's an important difference, which we probably should talk about. But I think that that carried through in terms of, when you think about the criminal justice system, is the ultimate use of government force and prison is the ultimate deprivation of liberty other than the death penalty. And we ought to be skeptical about how that's exercised in all of our names. And so that's the philosophical answer. The practical answer is in 2005, I was asked by Brooke Rollins, who was then president of the Texas Public Policy Foundation when it had five people or maybe I was the fifth to start part-time while I was practicing law, looking at the criminal justice system in Texas.
Marc Levin (02:49):
And one of the board members of the organization felt that we were spending all this money and we really weren't getting commensurate results. And also that we weren't focusing on victims in terms of restitution, and yet defendants were having to pay these enormous fines, fees to the government. And so I started just delving into the prison system in Texas and broader criminal justice system. And it turned out that there was a lot that needed to be changed. And ultimately in 2007 was a turning point, because there was a forecast on legislative budget board, that Texas would need to add another 17,000 prison beds on top of 160,000. And so that gave this opening to say, we could work and develop an alternative plan, which included creating more problem solving courts, mental health treatment, alternatives to prison, boosting in-prison treatment programs because people were approved for parole and it took months before they could get into a program.
Marc Levin (03:46):
So there were thousands of people backlogged in prison for that reason. And then also transitional housing for re-entry. So we put all that together in Texas with a $241 million justice reinvestment plan instead of $2 billion to build and operate those 17,000 prison beds. The whole goal was to avoid building prisons and Texas has now closed nearly a dozen prisons and crime has gone down 40%. So that experience really led to other states coming to us and saying, "What could we do in a similar vein?" And so that was, I would say the period from 2007 to maybe two years ago, where obviously as we could probably get into the criminal justice issue has unfortunately become a little bit more politicized again.
Marc Levin (04:34):
But we had this really tremendous period of both crime going down and incarceration going down and then we had COVID and a lot of other factors coming about, which at least temporarily lowered incarceration in some places, but these were affirmative decisions by policy makers to say, yes, especially even in red states, like Texas, the pendulums swung too far. And we really went overboard in terms of incarceration. So that's how I got into it and what transpired.
Dr. Douglas E. Wood (05:05):
I mentioned this in my interview with Daryl Atkinson and Jeremy Travis, and that is George Nash and his analysis of the conservative intellectual movement in America since 1945 speaks of, and I want to quote him "The omnipotent government and the naked individual." What does it mean to take a conservative approach to justice reform and what's an example where conservative principles provide a solution to a broken aspect of the justice system?
Marc Levin (05:34):
I'm so glad you mentioned Jeremy Travis and Daryl Atkinson, two good friends in the parsimony theme that they brought to the forefront, because that could also be viewed parsimony as least restrictive alternative, or a lot less government, and may maybe not quite Grover Norquist drowning government in a bathtub. But the point is that the criminal justice system too often has used a hammer when it should use a scalpel. And I think at the same time though, public safety's the core function of government when one person harms another, we of course need some type of intervention, hopefully that's restorative. And then of course there's conservative emphasis on self sufficiency. And a lot of the things that have accumulated in terms of collateral consequences have prevented people from working or made it a lot more difficult and to find housing and so forth if you have a criminal record.
Marc Levin (06:28):
Then of course there's been the whole religious conservative thread, and we worked very closely with prison fellowship over the years. And they played, I would say an instrumental role in highlighting how biblical principles can be applied in terms of a second chance society. And I think also the importance of families, keeping families together. I think that has a broad appeal - not just on the right. And the criminal justice system, of course, necessarily sometimes, but we ought to be very parsimonious about breaking up families and recognizing the impact on children. And obviously there's been a wealth of studies on children of incarcerated parents and the deprivations they face. So I think that one of the things that I'm concerned with at the moment that I think is the effect of the polarization of our society and perhaps more so the narrow casting that everybody's in their own bubble.
Marc Levin (07:30):
And what is the effect of that on the criminal justice system, you can't just live in a gated community. You can't just wall yourself off. We all go to down to the courthouse downtown and have a trial, and it's one system and there's no opting out of it. And I think that's really, you can opt out of the mainstream media. You can opt out of big tech, on a Facebook account, but in terms of the justice system, it's one set of criminal laws and one system. And so I think that that's where you see some of the strains when the society as a whole is being pulled apart, but we have no choice, but to come together when it comes to criminal justice.
Dr. Douglas E. Wood (08:10):
Marc, let's stay on this point a little longer. In your estimation, what is the long term impact of the polarizing environment we're in today?
Marc Levin (08:21):
Well, and again, it's such a concern because we're brought together in the criminal justice system often by force, if you're the victim, or even if you're called for jury duty, we have no choice. And then there's, of course you probably heard the phrase, "you can't legislate morality," but all criminal laws, or at least they should be in question, the statement of society is that certain conduct is deserving a moral opprobrium if not punishment, certainly some type of restitution or recompense. And we've got way too many criminal laws, which creates a further strain, especially in the context of polarization. But I think obviously the more specific issues affecting polarization in terms of the justice system now, certainly have been the controversy surrounding defund the police, which if you actually look at the numbers, of course, very few jurisdictions have reduced funding for police.
Marc Levin (09:15):
And the few that did that largely unwounded, but the much larger problem is the jurisdictions with a lot of money in their budget. I just heard from a council member in Springfield, Missouri, they're 250 police officers short, they just can't hire them. It's a retention and hiring issue rather than funding issue. But nonetheless, obviously that slogan really had a polarizing impact. I think certainly the racial reckoning that we had after the murder of George Floyd, I think that that's produced a considerable backlash. And I think that there's a lot of misunderstandings about the role of race in the justice system. I think that the data is certainly clear when you look at the fact that blacks are disproportionately sentenced. I mean, the US sentencing commission for drug offenses, they end up receiving about 20% longer sentence for the same offense, even adjusting for risk and history.
Marc Levin (10:21):
And it's also true when you look at police stops and what percentage those result in searches at virtually every area. And it's not just race. Of course, there's disparities in terms of disability, in terms of non-English speakers. And I think going back to the parsimony principle, one of the ways we can really address this is through saying that we have to design the system around the people that are most vulnerable, the people with the fewest resources. And so not those who have the most acumen to navigate a system. I mean, we've all seen in the context of one of the reasons for the Clean Slate Initiative, automated record clearing is only 5% of people who are eligible to get their records sealed. Under [unintelligible] you actually are able to do it or choose to do it because it's challenging. You have to file a petition and such, and a lot of the processes in the justice system, whether it's bail, certainly indigent defense.
Marc Levin (11:23):
I mean, there's some places where you actually have to submit paperwork to request a lawyer and you have to pay a fee to do the application for a lawyer because you can't afford a lawyer. So there's a lot of a complexity and catch-22s littered throughout the system. And obviously if you have someone who isn't even necessarily... there's a lot of people in prison who have very low literacy, you have people that don't speak English that can't understand what's being said. There's people that are deaf that have the tremendous challenges in the justice system, tremendous number of people with brain injury. So there's disproportion in the people coming into the criminal justice system have certain types of challenges that make it difficult for them to navigate it. And so the more difficult we make it to navigate the system, then we're going to build in disparities going forward.
Marc Levin (12:15):
So I think it's really important. And I think it is something that people can agree with because when you're saying in other areas that, okay, well, because there's all these disparities. Usually the punchline is, well therefore we need a new government program, or we need to spend more money on some social service, which may or may not be true. But in the criminal justice system, this is not the government creating a program. This is something that we're all bound by.
Marc Levin (12:45):
And we all might come in contact with whether as a defendant, a witness or a victim. And so we do have to build it around the person who's most vulnerable and has the fewest resources because the government is exercising this awesome power. So I think that that is a way to put the issues of race and other disparities into a context that we are talking about what the government is doing to someone in the name of all of us. And we have to make sure that it's both, I think, narrowly tailored, but also that we take affirmative steps to make sure that individuals can get the same equal treatment regardless of the position, regardless of where they are, when they encounter the system, regardless of their own resources.
Dr. Douglas E. Wood (13:36):
You mentioned the investments in the criminal justice system. So given the fact that the criminal justice system has become the second fastest growing area in state budgets, what are the most effective ways we can cut spending on the justice system while also simultaneously implement reform?
Marc Levin (13:55):
Well, I think a lot of that certainly comes to reducing contact with the criminal justice system that's not necessary. And so there's areas such as fines and fees and marijuana reform that you just take a whole lot of conduct that doesn't need to be criminalized off the table. So I think that's certainly one area. And then, on the other side of the spectrum, we keep people in the system longer than necessary. So probation terms is a really good example. There's a lot of research now showing, having somebody serve more than a couple of years on probation, except in extraordinary circumstances doesn't accomplish anything. It's very clear within the first year or two, whether somebody's going to re-offend or be successful. And the more resources you are able to free up by not having that individual on probation, then you can actually provide services and supervision in a more effective way to those that need it.
Marc Levin (14:53):
So, and then of course, on the far deep end of the system, you have people that are geriatric, other people that have been incarcerated for 30, 40, 50, 60 years. Mr. Montgomery in Louisiana, who was recently released is an excellent example of that after 57 years where there's clearly no public safety rationale. And the one thing we know from research about prisons is about the only thing they do well is incapacitate.
Marc Levin (15:18):
Obviously it's better to have evidence-based treatment programs in prison than not, but those can be completed within a year or two at most. So all of the criminological research show there's no additional recidivism reduction after a year or two. And so you're just talking about incapacitation. And the other thing is we've learned a lot with risk assessment tools, I know it's very controversial in the pretrial context, but in the context of parole and determining somebody's level of supervision and their risk if released, those really have gotten more fine tuned and they're not controversial. And so we don't have a crystal ball, but they're not only looking at age, but other factors make really informed decisions that yes, after 15 or 20 years, most people, it should be very rare. And that's how it is in Europe that someone would still be incarcerated.
Dr. Douglas E. Wood (16:12):
Can you tell us more about your work with the Council in Criminal Justice?
Marc Levin (16:17):
Sure. Well, the Council, I think, is really dedicated to the idea that there is a way to find consensus on criminal justice issues. And I think it's more true in this area than others because nobody wants more violent crime. Nobody wants more property crime for that matter. And at the same time, nobody wants to spend money unnecessarily. Nobody wants to restrict liberty unnecessarily. But it's a matter of finding the balance between safety and security, which is a timeless challenge. So the idea is, first of all, you want to get data so you could better strike that balance. And so we do a lot of gathering of data on crime rates on domestic violence, for example, during the pandemic and a lot of reviews of the research about what works, because there's certain, we all know the stories about the DARE program and scared straight that it may be well intentioned, but actually many instances produce the opposite result.
Marc Levin (17:21):
So we have to be on guard for that in the criminal justice system. There's some really promising data, for example, on violence interruption programs, which we put out a lot of material on, particularly making sure to focus on, for example, you have these credible messengers who in many cases were former gang members that are now businessmen or women or they're ministers. And now they're coming back to help basically individuals who are in the same shoes as they were 10 years ago, perhaps. And the challenges, some of these, especially the full-time violence interruption workers who have been hired in places like Chicago, the challenge is making sure it's sustainable. In other words that they are compensated appropriately. They have professional development opportunities. They have a community of best practices developing around this work, but some of them, I mean, I've heard these stories 3:00 in the morning they get the call from someone they're a mentor to, and they have to be able to figure out how to help them with deescalating a conflict that could, if they weren't there perhaps lead to a homicide that evening or a violent crime.
Marc Levin (18:36):
And that's a lot of stress to do that without any time off, without resources at your disposal, perhaps. And some of these workers don't even have health benefits. So I think professionalizing it and really making sure it's sustainable is something that we found to be very important in our research, because that's part of the whole fidelity aspect of a lot of different programs, whether they're in prison programs or violence prevention programs, that sometimes they start out with a big splash. And then it turns out that retaining staff and replication are difficult as it grows. And you don't end up seeing the same results year after year. So that's one of the things we also focus on. So it's not just the latest and greatest, but also over the long haul how do we keep these things effective?
Dr. Douglas E. Wood (19:29):
I want to get back to this idea of the polarizing environment that we're in right now. Within this particular context, what is your strategy when trying to get places that are especially punitive to adopt justice reform in today's context?
Marc Levin (19:45):
One of the first off-ramps from the justice system can be a different response on 911. Some jurisdictions that recently removed 911 from the police department and put it in a broader public safety rubric they've been accused of defunding the police, which doesn't make any sense because you're not removing any officers from the street. You're not cutting police equipment or anything like that, but you're reflecting the fact that people call 911 for obviously fire, for medical, but also some of the things like if there's a person who appears to be having a mental health breakdown. And it shouldn't automatically be that a police officer gets sent to all those. I mean, noise complaints, there are cities where noise complaints are one of the biggest police sources of police calls. And certainly even a civilian worker for the government could come and try to address that.
Marc Levin (20:40):
Now, of course, if it became heated, they can call the police just like if a mental health call escalates you can have police backups. But the 911 responders, a lot of it is about training. So they can make the best decision in terms of who to dispatch. And Arnold Ventures has a project where they're working on that, that I think is very promising. So I think that these types of strategies, sometimes I think they're seen as more radical than they actually are. And I think that sometimes they get portrayed that way, even by people advocating alternatives to policing for certain cases, which actually of course frees up police to do more of dealing with violent offenses, building relationships. There is this delicate balance to be struck between having a wide array of public safety responses. But at the same time, of course, having proactive policing and building relationships rather than just reactive policing.
Dr. Douglas E. Wood (21:50):
Well Marc, we always ask our guests the same final question, which is when you hear the phrase Shades of Freedom, what does it mean to you now and for the future?
Marc Levin (22:03):
A few different things. So one is, I think we have to think about the distinction between negative and positive rights, which underlines the divide in our society in some ways that of course, negative rights is we have a right to be free from government restrictions on our speech, for example. But positive rights some people would say, if you're having a healthcare emergency and you can't afford healthcare and you don't have a right to that, then how free are you, right? So obviously the constitution in our history is very much oriented towards negative rights and not those that require the power of the purse. Now where the criminal justice system and incarceration come in, that's actually a really great deprivation of both. The deprivation of liberty that the criminal justice system and particularly prisons pose appeals to people who care both about negative and positive rights.
Marc Levin (22:55):
And that can also be obviously different conceptions of freedom, which is really what we're talking about. Now, the shades part, obviously that certainly brings to mind the issue of race, which is inescapable in the criminal justice system. And just a few years ago in Sugar Land, outside of Houston, where there's a prison from 1900, it was on the property of a plantation like Angola. And they discovered bones there a few years ago of black sharecroppers who died and weren't even buried. So there is this sense in which particularly in the South, there's Jim Crow and segregation, all of that bled into some places the same physical space as the prison system. And I think of course, we're all aware of express statutes on the books that discriminate based on race, which thankfully we've gotten rid of.
Marc Levin (23:51):
So in a theoretical sense, well, why isn't there total freedom then? But what I've realized is also sometimes we're limited in what we can do, not because there's a statute that says that it prohibits it, but because of the societal stigma, but I think all of this just speaks to that. We have to put the humanity at the forefront when we're dealing with criminal justice and the innate desire for freedom, the innate desire for connection to other people. And I think we're realist about it. I recognize that I think we do need incarceration. We use it far too much, but we can do that in a way that is more similar to whether it's Germany in terms of how they run their prisons or New Zealand in terms of the availability of victim-offender mediation, sentencing circles, other forms of restorative justice.
Marc Levin (24:49):
And those types of approaches will, I think be more consistent with basic human dignity, the desire to be as free as possible, and to exercise your autonomy and to have meaningful connections with other people. And some of this also, is such simple things like prison visitation, natural light, the noise in prison, people can't sleep, and that actually leads researcher has shown to more disruptions in prison. So a lot of things we're doing actually don't make sense from even the standpoint of maintaining a safe environment for the people that work there, as well as the people that are incarcerated. So I think that, I would say overall that the punitive urge that we all have to admit we feel to some degree after we see a heinous crime, it sometimes obscures, what I would say is a deeper, more considerate view that ultimately people are still human no matter what they've done, and that we've got to build a system around that.
Dr. Douglas E. Wood (25:59):
Well, thank you so much Marc, for being a guest on Shades of Freedom, and we'll continue to follow your wonderful work at the Council on Criminal Justice. Thank you.
Marc Levin (26:11):
Thank you for having me, Doug.
Thanks for joining us for Shades of Freedom from the Aspen Institute's Criminal Justice Reform Initiative. We'll be back soon with more thought provoking guests. So please subscribe on your favorite podcast app. This podcast was produced by Lynnea Domienik with research assistance by Willem Patrick. It was edited by Ken Thompson. Special thanks to Christian Devers and Wanda Mann. CJRI's programs are made possible by support from Arnold Ventures, the Bank of America Charitable Foundation, Chan Zuckerberg Initiative, the Ford foundation, The Balmer Group, and Community Foundation for Southeast Michigan.