Iâ€™m glad to see this coverage in the New York Times today acknowledging that the federal government isnâ€™t the main event when it comes to mass incarceration, an idea to which I have long subscribed. Iâ€™ve actually been planning a longer post about this, focusing on the ways in which criminal legal scholarship is disproportionately focused on the federal system, but much of my time has been taken up with a class that focuses on the extremely local drivers of criminal justice: county-level actors.
Iâ€™ve already blogged about this class before, but as my students have really started to crank out their research, I wanted to revisit it. The class focuses on bail and pretrial release in Santa Clara County, CA, a county of over a million people that houses San Jose and most of Silicon Valley. We chose this focus for a number of reasons. Santa Clara University, where I teach, is a Jesuit School, and part of our mission is to seek social justice. Bail and pretrial release decisions disproportionately affect the poor in our own community, so that was an easy sell. We also had the opportunity to contribute our research to a county-wide Bail and Pretrial Release Working Group that is seeking to address the issue. Finally, on both an intellectual and policy level, bail is intensely local in California. Bail schedules are set by a county panel of judges, there is discretion built into the system at the officer level and the jail level, and jail capacities and practices vary from county to county. Itâ€™s almost impossible to get an accurate picture of bail in California without looking intensely at the local level, because there is no single statewide system. There are also important systemic knock-on effectsâ€”how failure to make bail embeds criminality, for exampleâ€”that are best examined by looking at a single county system and its agencies and practices in depth.
More than that, though, there is often a wide gap between law on the books and law on the ground, as Mona Lynch has observed (among others). My students just spent a week watching court, and many of them were struck by how widely practices varied from courtroom to courtroom, how almost all of the procedures fell short of what was supposed to happen, and, in some cases, they wondered whether what they observed was even legal. This is an area of the lawâ€”and a populationâ€”that gets very little attention, partly because itâ€™s local, partly because it concerns non-capital crimes, partly because there are just so many cases stuffing the channel. These are crucial parts of the procedure for the accused that donâ€™t touch on any of the topics typically taught in law school. In most law schools, you read Stack v. BoyleÂ and U.S. v. Salerno at most; that’s all you get for bail. Continue reading “Think and Act Locally When It Comes to Criminal Justice”