Thoughts on the Holder Address: Two Cheers for the New Paradigm

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at less cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.  

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A History of the Mug Shot

Al Capone mugshotSome of the very earliest photographs from the late 1830s are of alleged and/or convicted criminals, and law enforcement officials used photographs of criminals in Belgium as early as the 1840s to track down wrong-doers.  In Paris, a clerk in the Prefecture of Police Office originated the “mug shot” as we usually imagine it — two shots side by side, with one shot being a frontal shot and the other being a profile.

This so-called “Bertillon System” was displayed at the Chicago World’s Fair in 1893, and it quickly caught on with American urban police departments.  It was an age of science, and some thought of the mug shot as a useful component in “scientific law enforcement.”  Indeed, there are surviving efforts by police departments to superimpose photographs of certain types of criminals on top of one another.   We could then, theoretically, have distilled images of, to note only two of many possibilities, the typical pickpocket or typical forger.

In the present, mug shots are still with us, but we now live in an era in which the market rather than science is seen by many as our savior.  It is possible to round up mug shots from public records and post them regardless of whether the pictured individuals have been prosecuted and/or convicted. 

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Alternatives to Incarceration: The Importance of Local Collaboration and Leadership

Last week, the Audit Services Division of the Milwaukee County Office of the Comptroller released a helpful new report, “Electronic Monitoring can Achieve Substantive Savings for Milwaukee County, but Only if Pursued on a Large Scale with Satisfactory Compliance.”  Although the voluminous report particularly focuses on electronic monitoring, it also provides a wealth of background information about the recent history of our local jail, House of Correction, and alternatives to incarceration.  The report documents a rich array of new or recently reinvigorated programs that are intended to divert defendants from the jail or House of Correction, either at the pretrial stage or post-adjudication.  The report also notes widespread support for these initiatives among nearly all major stakeholders in the County’s criminal justice system, with the most significant exception being Sheriff David Clarke.

Media coverage centered on the report’s finding that home detention and electronic monitoring of larger numbers of offenders might save the County more than $2.5 million in costs at the House of Correction.  The Office of the Sheriff responded to this finding in a characteristically derisive fashion, particularly criticizing the House’s current leadership for placing drunk drivers on electronic monitoring.

Although the war of words among County officials makes good copy, I think the real story in the report is the extensive and innovative collaboration that has been occurring for the past half-dozen years between court officials, elected leaders, prosecutors, public defenders, and various other stakeholders in order to address Milwaukee’s chronic jail overcrowding and to develop cost-effective alternatives to incarceration.  

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