New Book Chronicles Growing Consensus Advocating U.S. Criminal Justice System Reform

Posted May 6, 2015

MP3 Interview with Nicole Fortier, counsel with the Brennan Center’s Justice Program and associate editor of the book "Solutions", conducted by Melinda Tuhus


Over the past two decades, jails and prisons in the U.S. have incarcerated an increasing number of people, most of whom have not been convicted of violent or even serious crimes. There are now more than two million inmates behind bars and many politicians on the left, right and middle recognizing that the status quo is untenable have called for reforms. Incarceration rates have remained high in the U.S., even as crime rates have fallen dramatically.

"The New Jim Crow," a book by Michelle Alexander, was a wake-up call for many, especially among progressive activists. But a new book from the Brennan Center for Justice at New York University School of Law titled, “Solutions: American Leaders Speak Out on Criminal Justice,” is now also making waves. Bill Clinton, who ironically pushed for many get tough on crime measures when he was president, wrote the forward to the book in which he said, change is being driven by "a desire to save taxpayers money; the resolve to promote rehabilitation, not recidivism; an obligation to honor religious values and the necessity to alleviate crushing racial imbalances.”

In “Solutions,” 15 well-known politicians – including most declared and likely presidential candidates – joined criminal justice experts to write 1,500-word essays on how to address the over-incarceration of Americans. Policy changes advocated included ending mandatory minimum sentences, more drug treatment and mental health counseling, alternatives to incarceration, more re-entry programs and an end to the death penalty, among others. Between The Lines’ Melinda Tuhus spoke with Nicole Fortier, counsel with the Brennan Center’s Justice Program and an associate editor of “Solutions.” Here, she describes the negative impacts of over-incarceration and the policy changes proposed in the book by contributors from across the political spectrum.

NICOLE FORTIER: With the events in Ferguson, Staten Island, and now Baltimore, we really were wondering where they felt the future in criminal justice reform was. And beyond that we also wanted to seek out criminal justice experts who could really help the average reader understand these issues further.

BETWEEN THE LINES: In briefly perusing the responses, I saw some things appear again and again, like more mental health and addiction treatment, more re-entry programs. But Chris Christie proposed something I hadn't seen from other essays, which was to reduce pre-trial detention. Some people are held without bail, but most people who can make bail are released before trial, and I've read that they have better outcomes in the criminal justice system than those who can't. Is that right?

NICOLE FORTIER: I think studies show that the more people in pre-trial detention – essentially in jail while they await trial – are more likely to be sentenced, to be sentenced for longer periods of time and really go further into the system. I think one of the reasons that those studies come out that way and those are the results, when you're in jail, sometimes trials can take a long time before they actually begin, so there begins to be this huge pressure to take a plea deal and just move forward, rather than sit in jail and not be able to get to your family, not be able to get to work, not be able to do a lot of things. So there's more pressure to plead guilty and there's also just more chances that you'll be sentenced. But Chris Christie's was just a very interesting reform that he championed in New Jersey. It was two-fold: There was an aspect of it where he thought it was just inherently unfair the way New Jersey's law worked before they changed it, was that so long as you could afford bail you could get out and if you couldn't, then you could not. There was no alternative to monetary bail. So what he saw happening were cases where very dangerous people who could afford bail would get out, while people who were there for very low-level non-violent crimes were stuck because they couldn't afford it. So he championed two different changes to be able to give people alternatives so they need not pay to get out of jail. It includes a slew of things: staying in school or work could be an option, having a sort of guardian appointed to check on you is another option. And at the same time, he gave judges the option to be able to say that someone is incredibly dangerous and could hurt people if they were out so that they would stay.

BETWEEN THE LINES: I've always just accepted the system of cash bail as part of the woodwork, but I read an article in Mother Jones last year that made me realize how discriminatory our bail system is against the poor and low-income folks.

NICOLE FORTIER: I think, sadly and very unfortunately, our criminal justice policies have targeted the poor and low-income neighborhoods in particular, I don't think on purpose, per se, but the idea behind bail is you want to have a reason people would come back, and money is where the government goes to. You think about civil cases, for example, it surrounds the idea of money. Money can be used for compensation; it's what's important to people. But in reality, not everybody has access to money, so if you have a $10,000 bail, you can try to do (ten percent) cash; if you don't have $1,000, then you can't get out of jail. And some people also don't think it's worth it if that $1,000 means they can't pay their rent or buy their children clothing, so they opt to stay in jail.

BETWEEN THE LINES: What stood out to you and others at the Brennan Center as the most common or most popular suggestions, even across party lines?

NICOLE FORTIER: I think the one thing that I didn't expect and that I found incredibly remarkable was how many of them actually identified – maybe not using this terminology – but identified mass incarceration as the actual issue. Even three years ago, I don't think that would have been what happened. So it's really a turning point to see them agree on what the problem is and focus on solutions all together. I really found all of the policy solutions really interesting; I do think though that there was a trend of treatment over punishment. I saw that in a lot of the essays. And I'd have to say the one I saw pop up two or three times in different essays were references to things that Texas is doing in the past five years; and I think it's been doing it without anyone really paying attention. Texas has really adopted a lot of alternatives to incarceration; really creative ways to give financial incentives to their criminal justice actors, be they police, prosecutors or parole or probation officers to deter them from bringing more people into prison. It was interesting to see how many of the essays of people in Texas and out of Texas were pointing to Texas as a good example.

BETWEEN THE LINES: That's really interesting, since Texas is most known as the death penalty capital of America. When you said you think all these people wouldn't have identified mass incarceration as the problem three years ago, what do you think has changed?

NICOLE FORTIER: There's been more books, more talks. All of that has been happening more. I think also the Obama administration has been shining a light to it slowly but surely, especially former Attorney General Eric Holder started talking about it a little more directly. And I think what we've also been seeing is that in 2008, when we hit our financial crisis, our criminal justice system was still costing a lot of money, simply because so many people were caught up in it. And so when it costs so much money each year – hundreds of billions, really – and you're trying to cut the budgets of everything, it became really problematic and I think a lot of politicians in particular really had to pay attention to that suddenly, and it was making them really rethink what was worth it, what wasn't, what's a priority, what's not.

For more information on the Brennan Center’s Justice Program, visit, for more information on “Solutions: American Leaders Speak Out on Criminal Justice,” visit

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