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Try Again, Fail Again, Fail Better: Lessons from Community Courts

Greg Berman, Director, Center for Court Innovation

Change doesn't come easy, particularly within an institution as large and complex as the criminal justice system. Greg Berman, Director of the Center for Court Innovation, offered lessons from several efforts to make reform stick in criminal justice settings. In particular, he focused on the development of community courts — experimental court projects that are attempting to reduce both crime and incarceration in dozens of cities across the U.S. and around the world. He also drew upon his recently-published book Trial & Error in Criminal Justice Reform: Learning from Failure(Urban Institute Press).

John Laub: Good morning. I'd like to welcome you today to the seminar Research for the Real World. My name is John Laub, and I'm the director of the National Institute of Justice. And I just want to thank you for taking time out of your schedules to be here this morning.

Today's presentation is entitled "Try Again, Fail Again, Fail Better: Lessons from Community Courts," and the speaker is Mr. Greg Berman from the Center for Court Innovation. He's going to be discussing lessons from several reform efforts in criminal justice settings. In particular, he's going to focus on the development of community courts — experimental court projects that are attempting to reduce both crime and incarceration in dozens of cities across the United States and around the world.

My hope is today that we're all going to take away valuable information that we could all use in our current day-to-day activities and our work in the future.

And I want to note that the book, Daring to Fail: First Person Stories of Criminal Justice Reform, is a product of a collaborative effort from the Bureau of Justice Assistance, one of our sister agencies in the Office of Justice Programs, and the Center for Court Innovation. I think in particular, it's important to note that this is really the list of the stellar movers and shakers of the field in terms of both scholars, practitioners, as well as policymakers, who discuss — very bravely discuss, in my view — the failures, challenges and setbacks that they've encountered in trying to work in the area of criminal justice reform.

I also do want to point out that two of the interviews involve people that are close to us: Laurie Robinson, our assistant attorney general; and Amy Solomon, the senior advisor to the assistant attorney general. And you should particularly look to see if the images, the sketches, look like them. Anyway, I found the book fascinating, and it is the kind of book that you could actually read during the baseball game. Quick read.

Now it is my pleasure to introduce Mr. Greg Berman. Greg is the director of the Center for Court Innovation, which recently won the Peter F. Drucker Prize for Nonprofit Innovation. He's part of a founding team responsible for creating the center, and he's helped guide the organization from a startup to an annual budget of more than $17 million. The center has been responsible for implementing more than 20 demonstration projects, including the Midtown Community Court and the Red Hook Community Justice Center.

He's the co-author of Good Courts: The Case for Problem-Solving Justice and Trial and Error in Criminal Justice Reform: Learning from Failure, which is another book I strongly recommend. He's a graduate of Wesleyan University and a former Coro Fellow in Public Affairs.

When I became interested in being the director of the National Institute of Justice, I was drawn to the second page in the Sunday New York Times business section, which were interviews. It's called the Corner Office, and they were interviews with various organizational leaders across a variety of fields. And I was struck by the questions that were asked of these leaders: Often “Tell me an instance in which you failed in your career,” and also “How do you interview?” And inevitably, all of these men and women, young and old, black and white, all races, said, "I ask people during interviews not to tell me about their résumé because I could read. Tell me about instances in which you failed." And so I think the idea of criminal justice taken seriously, trial and error, the importance of leaders failing, managing change, self-reflection, all these are good things.

Now, this doesn't mean as an academic I'm going to add to my CV: “These are the papers I wrote that got rejected.” However, I do think it's a rather gutsy move, and I do really applaud my good friend, Jim Burch, in the Bureau of Justice Assistance, for sponsoring this because this is a great thing for the criminal justice field, and I look forward to the talk. So, Greg.

Greg Berman: How's everybody?

Attendees: Good.

Berman: So it is an enormous pleasure to be here. Washington, as some of you know, is my hometown, and in New York, spring has not sprung yet, but it has sprung here, so it was nice to experience that. Thank you for your introduction, John. I wish my parents were here to hear that. And I want to also thank your team, Jolene and Yolanda in particular, for taking such good care of me.

So I want to start with an unusual move, I think, for a speaker, which is to start with a series of confessions, and my first confession is that I have written actually a formal speech today, but even though I've written a formal speech, I'm someone who hates delivering formal speeches. I'm a little bit of an introvert by nature, and so the idea of kind of talking for minutes uninterrupted is abhorrent to me. So I know that you want questions to come at the end, but if you do have a question, if I do say something stupid along the way, please raise your hand and interrupt me. You'll be doing me a favor.

My second confession is that it's going to be enormously difficult for me to live up to the title of these remarks, Research in the Real World. So, first of all, I'm not a researcher, so I'm not going to share any groundbreaking research with you today. In fact, I'm a liberal arts kind of guy. I'm not a numbers person. That's one confession. But I'm also not really a criminal justice practitioner, not in any real sense of the word, right? I've never arrested anybody. I've never prosecuted a case. I've never supervised anyone on probation.

Given all this, you may be asking yourself, you know, “Why did John make this invitation?” I think he made this invitation because I've written a couple of books about criminal justice reform, and the lens through which I come to the topic of criminal justice reform, there's basically two lenses I bring to it. One is the perspective of the professional amateur, the person who kind of feels the freedom through ignorance of just asking the dumb question or the simple question, and the second lens I bring to this is that I think of myself as a writer. And like a lot of writers, I tend to think in three-act structures, right — beginning, middle and end.

So the structure for my remarks today is really a three-act structure. So, first, what I want to do, I want to beg your indulgence, and I want to talk a little bit about the agency that I run, the Center for Court Innovation, because I think it will help clarify my perspective on criminal justice. Then I want to drill down a little deeper and talk about just one of the reforms that we've been responsible for implementing, which is the community court model, and if the technology gods are with us, I'd actually like to air for the first time in D.C. a short film that we made about community courts with the help of BJA. And then finally, I want to offer some lessons that I've learned about program implementation, both from my direct experience helping to create nearly two dozen demonstration projects in New York but also from the process of writing this book that you see up there, Trial and Error in Criminal Justice Reform.

And I should pause here to credit my colleague Aubrey Fox who I wrote this book with. Aubrey is not here today. He's in London. We're trying to establish an outpost in England, so he can't be here, but Aubrey really has helped kind of sharpen my thinking about lots of the stuff that I'm going to talk about here today.

So the Center for Court Innovation. What is the Center for Court Innovation? The center is a not-for-profit organization that has managed to forge a unique relationship with the New York State court system where they, in essence, hire us to function as their R&D arm, and this is an arrangement that really is the product of the vision of three remarkably talented people. One is the chief judge of New York, a guy named Jonathan Lippman. Two is his predecessor in that role, a woman named Judith Kaye, and the third is my predecessor in the role of the director of the Center for Court Innovation, a guy named John Feinblatt, who is currently Mayor Bloomberg's top criminal justice advisor.

So, in New York, the court system hires us to function as their R&D arm, which means they give us some money, which is nice, but just as importantly, permission to study difficult problems within the justice system, to devise new solutions, and then actually go out and implement them.

And while our home is in New York, we've always had aspirations to kind of have an influence beyond the five boroughs, and so the Department of Justice has been our partner in much of this work. We've aggressively tried to go out and kind of disseminate what we've done in New York and help other reformers around the world and around the country learn from our experiments in New York.

So what the Center for Court Innovation is trying to do in broad strokes is reform the criminal justice system, and I think that there are probably dozens of ways one could go about reforming the criminal justice system, right? You could do impact litigation. You can do lobbying. You can do public advocacy. We don't do any of those things. Our model is a little bit different. What we're trying to do is reform the criminal justice system by working in close partnership with government to actually change practice on the ground, and we have three core areas of business.

The first, most relevant to being here today at NIJ, is research. We have a deep commitment in our DNA to research, to data and analysis. We study problems from a variety of different angles, and for example, right now we're digging into the neighborhood of Brownsville, New York. Brownsville is a neighborhood in Brooklyn that last year was, on a per capita basis, the most violent neighborhood in New York City, and we're doing a lot of kind of traditional research things like looking at court and police statistics, but we're also going out into the neighborhood and interviewing influential members of the community. We're conducting focus groups. We're surveying local residents and asking them what they think about their neighborhood and about crime and about the justice system. And whether it's a neighborhood like Brownsville or some other neighborhood, when we do this kind of work our purpose is not just knowledge for knowledge sake, and our purpose is not to write some interesting reports, although I hope we do write some interesting reports, but rather we're doing research to inform the development of demonstration projects. And that is the primary way that we're trying to change the world.

And our goal in creating demonstration projects is really to field-test new ideas, to show new thinking in action, and since we started, we've developed 21 different demonstration projects in New York. Some of them are big; some of them are small. Some of them deal with very serious felony-level cases; some of them deal with very minor infractions. Some of them deal with adults; some of them deal with juveniles. But the theme that kind of weaves through them all is a desire to push the justice system away from a kind of rote mechanistic approach to "Let's just get through the calendar," "Let's just get through the day," and towards a more individualized approach that really tries to dig in and solve the problems of individual defendants, of individual victims, of individual neighborhoods.

All of our demonstration projects have researchers associated with them, whether on a part-time or full-time basis, and our half-dozen or so largest demonstration projects have been the subject of independent evaluations by places like the Urban Institute, John Jay College and the National Center for State Courts.

So I've talked about research, talked about demonstration projects. Then we go out and provide what we call here "expert assistance" to the field. We're trying to aid justice reformers around the country, both inside and outside of government, helping them implement new solutions to local problems, and much of this work has been done in partnership with BJA.

And I just want to thank BJA. We've been incredibly fortunate to work with people like Jim Burch and Kim Norris and Danica and so many other people who — and I hope I'm not pandering — but they really do embody what it means to be a public servant, and I've learned a lot from working with them, so thank you, guys.

So, anyway, what we're trying to get at in this somewhat obscure graphic is that our three core areas of business are meant to be kind of mutually reinforcing. Research is the foundation upon which demonstration projects are built. In turn, our experience running real-life programs is what gives us the credibility to provide assistance to the field, and then what we learn from our engagement with the world we try to feed back into our demonstration projects so that we're a learning institution as well as a teaching institution.

What I want to do now is drill down and focus on just one of the projects that we've been responsible for helping to create and promote over the last decade, and that is the community court. So community courts are incredibly complicated beasts, but if you boil them down to their essence, I think they're trying to achieve two or three basic goals.

The first goal is to take low-level offending seriously. Now, this emphasis on minor offending doesn't come out of nowhere. Rather, it's an acknowledgement of a simple fact. Despite what we see on TV, the daily fodder of criminal courts in this country are not murders and rapes and crazed celebrities assaulting people, but if you look at the statistics, and if you look at the statistics published by the National Center for State Courts, more than 80 percent of the caseload in our criminal courts are misdemeanor offenses, in fact: shoplifting, vandalism, minor drug possession, things like this. That's not where the focus is, but that's where the numbers are.

So, in addressing minor crime, community courts implicitly honor the idea of broken windows, first advanced by George Kelling and James Wilson a generation ago. So, first and foremost, what community courts are about is trying to strengthen the judicial response to minor crime and make sure that there are real consequences for behavior that erodes the quality of life in our neighborhoods.

The second goal that community courts are trying to achieve you see here is a focus on trying to move the justice system away from using incarceration as a default setting in responding to crime. Now, at first glance, these two goals might seem to be in conflict with one another, right? Broken windows inherently is about bringing more people into the system, while promoting alternatives to incarceration is logically about pushing people out of the system.

Community courts' solution to this dilemma is pretty straightforward. What community courts try to do is provide judges with additional options, so that they don't have to choose between jail and nothing. And so this means creating community-restitution projects that actually target hotspots and eyesores in the local community, and it means offering the kinds of social services, whether it be job training or mental health counseling or drug treatment that, you know, touch wood, might prevent someone from coming back to court again and again as a recidivist.

Inside the courtroom, community courts are about a problem-solving orientation in trying to address the underlying problems of defendants. Outside the courthouse, what community courts are about is trying to engage local residents in doing justice, and I think this is based on a belief that true and enduring justice doesn't come from living in a police state, but rather true and enduring justice comes when government and citizens work together in an atmosphere of mutual respect to promote pro-social values. And that's why community courts perform some of the work that you see depicted here on the slide, whether it be town hall meetings or neighborhood cleanups or a local volunteer program or a teen-led youth court. All these are examples of community courts trying to engage the public in the work of the justice system.

So, over the last 10 or 15 years, my agency, the Center for Court Innovation, has been involved in helping to create four community courts in New York: one in Red Hook Brooklyn, one in Midtown, one in Harlem, one in the Bronx, and we're working on a fifth in Brownsville. So I want to spend just a couple minutes talking about the one in Red Hook, which I actually had the privilege of being the lead planner of before I became the director of the Center for Court Innovation.

So I started working in Red Hook in the early 1990s before New York had experienced this kind of incredible public safety improvement that we've enjoyed over the last 15 years, and what struck me about the neighborhood first and foremost was its geography. And I don't know if you can see here, but this is Red Hook, so this is Southwest Brooklyn, and over here is Lower Manhattan. So the physical distance between Red Hook and the corridors of power, between Red Hook and Wall Street, is very, very small. It kind of feels like you could throw a rock from Red Hook and hit a banker on Wall Street. So the physical distance is small, but the psychological distance couldn't be more vast.

Red Hook is traditionally a poor and working class neighborhood. It's home to one of New York's oldest and largest public housing developments. It's surrounded on three sides by water and cut off from the rest of Brooklyn by an elevated expressway, and it's a neighborhood that has a reputation for drugs and disorder and has for a long time. And the low moment for Red Hook came in the early 1990s when an elementary school principal named Patrick Daly was actually killed in broad daylight. He was out looking for a student who was truant one day and got caught in a crossfire between two local, rival drug dealers, and in the aftermath of this horrible, horrible, horrible event, the local district attorney, a guy named Joe Hynes who is a wonderful prosecutor, did two things.

One was he went after both drug dealers, even though they couldn't tell whose bullet had actually killed Patrick Daly, and he actually successfully prosecuted both for murder. But the second thing he did was state very publicly that aggressive law enforcement and even the most creative prosecution wasn't going to change the dynamics in Red Hook — that something else was needed — and he called in a very visible way for the creation of a community court in Red Hook. And that's when I came on board to lead that planning effort, and we actually renovated — you can see there the facade of the building — we renovated a parochial school that had been vacant for 20 years and was a powerful symbol of the neighborhood's decline.

So the Red Hook Community Justice Center opened in the year 2000, and just to be clear, this is an official branch of the New York State Court System with a real judge and legal aid attorneys and prosecutors and probation officers that handles misdemeanor crime and low-level felony crime from Red Hook and the surrounding neighborhood.

So Red Hook is currently the subject of an NIJ-funded evaluation being conducted by the National Center for State Courts, which I don't have results from yet, but because we believe in an action-research model, researchers from the Center for Court Innovation are also dedicated to the project and are kind of constantly feeding us numbers about how it's doing.

And just the ones that kind of jump out to me, one is that we've actually changed sentencing practice. We've dramatically reduced the use of jail. Two, that we have bolstered public trust in justice in this neighborhood. And then the last bullet is particularly important to me; We surveyed criminal defendants that had gone through Red Hook and compared them to defendants that went through the main criminal courthouse in downtown Brooklyn and found very high rates of perceptions of fairness at the place. And that was true regardless of the outcome of the case or the demographics of the offender.

Over the last 10 years, we have hosted an average of 625 people, visitors per year to Red Hook and our other demonstration projects, and most of them come to look at just a piece of what we do. They're interested in how we do community service. They're interested in how we redesigned the courthouse to make it more user-friendly. Fully two out of three visitors who come to us say that they're going to take back something to their home jurisdiction and implement something that they learned in Red Hook, and then there's a small percentage of people who actually come because they're interested in replicating the whole thing in toto.

And so there are about three dozen community courts in the U.S. I just actually got an email yesterday that another one is being planned in Milliken, Colo., which isn't represented here, and there's another two dozen in operation around the world.

So what I want to do now is kind of pause and show you just a brief video that we made that offers some highlights of how these programs work.

That’s what community courts are. So now I want to pivot and talk not about content but about process, and in particular, I want to try to offer some lessons that I've learned from the community courts that you saw on the screen, but also from other criminal justice reform efforts that we've looked at around the country. And these lessons are drawn from a project that we've done for the last couple of years in concert with BJA, a project that we've dubbed the "Trial and Error Project."

This policy inquiry is really based on a couple of operating assumptions. The first operating assumption, as you see here, to paraphrase Teddy Roosevelt, is that failure is a fact of life, that there is no effort without error, and we should acknowledge that. And the second operating assumption, to paraphrase Abe Lincoln, is that it's kind of human nature not to want to talk about failure so much.

And just to be clear, when I say failure in this context, I'm not talking about errors of corruption or malfeasance or incompetence. I'm talking about the kinds of cases where a bunch of smart, talented, dedicated people got together to try something difficult and fell short of their goals for one reason or another. That's what I'm talking about here.

And so what we want to do by shining a spotlight on this particular topic is to try to gently nudge criminal justice away from what I would characterize as a "cover-your-[expletive] culture," where when something goes wrong to have it as to blame and to fingerpoint, and nudge it gently in the direction, nudge the field of criminal justice gently in the direction of actually embracing innovation and embracing kind of honest self-reflection.

In undertaking this project, that's the goal at least, and in trying to achieve this goal, I think it goes without saying that some other fields are massively better at talking openly about failure than the criminal justice system is. And the example I like to cite comes from the world of science and business actually, which is the Eli Lilly Company, the pharmaceutical company, which for many years was famous for hosting failure parties for their scientists when they had performed outstanding research, even if it hadn't led to any new products for the company. And I think it's fair to say — at least I've never heard of it — that there are no failure parties in criminal justice.

All of which kind of returns me to where I started this morning which is the theme of confession, right? And so I'm here kind of in the spirit of honesty and humility and airing dirty linen maybe, and so what I want to offer are the top 10 lessons that I've learned about implementing new programs. Unfortunately, I ran out of steam last night after nine, so you're going to have to make do with one less than I originally intended.

As you will see as I cycle through these, none of these are actually rocket science, but I can tell you that even an agency like mine which is explicitly devoted to being thoughtful about innovation, we make these mistakes over and over again. So lesson number one, not all failures are alike. There's a famous quote from Tolstoy that I like that says that “happy families are all alike,” but that “every unhappy family is unhappy in its own way,” and I think that's probably true when it comes to criminal justice failure. I mean, I think if you really look at it, each failure is in fact distinct. You know, each failure is the product of its own unique negative alchemy that involves, you know, toxic personalities and bad luck and a challenging environment.

But if you take a step back, there are at least four categories that we saw that a lot of failures cluster into, and these are the ones that I've put on this slide.

The first is fairly obvious, a failure of concept. You know, sometimes reformers just pursue dumb ideas, right? I don't think it's worth wasting a lot of time on that.

Number two is a failure of implementation. Sometimes they have the right idea, but they implement it poorly.

The next two categories of failure I think are a little bit more subtle and may be worth a moment of explanation. Failure of marketing politics, what do we mean by that? A good example is a program that we looked at that was actually evaluated by NIJ in the 1990s, a program in St. Louis called "Consent to Search," which was implemented by the police department in St. Louis, and it showed real promise in getting guns off the street, particularly guns belonging to young people who are most likely to use them and also to be victimized by them. And it was a project that got a fair amount of acclaim and that had some good results, but it was ultimately killed. And why was it killed? Not because it was a dumb idea, not because the police officers did a bad job of implementing it. It was killed because the police chief that originated it ended up running for mayor and a new police chief came in, and anything associated with the old police chief was toxic, and so it was just disbanded. I wish I could say that that was unique to St. Louis, but we've seen that happen over and over again that some reform efforts are stymied by politics, by a failure to kind of win the resources, the manpower, the money they need to move forward.

Category four: failure of self-reflection. What I mean by this are cases — there's lots of cases where people start out very brightly and achieve some good results but have an enormously hard time sustaining success over the long haul because they're not thoughtful about documenting the results. They're not thoughtful, they don't have the infrastructure they need to respond to conditions on the ground as they change, and one of the things that we've learned over and over again through this process is that as hard as it is to kind of achieve success initially, I think it's even harder to sustain success over the long haul, so that's lesson one.

Lesson two, something that I know is dear to John's heart: Our expectations of criminal justice reform should be modest. This quotation from Joan Petersilia comes from the book Daring to Fail, which hopefully you've all gotten a copy of, and if you haven't, just kind of see me after because I'm happy to ship more copies. And it's also available — you see the URL — it's also available for a free download at our website.

I also want to read two other quotes that I think speak to this lesson. The first is from a professor at Hamilton College, a guy named Paul Gary Wyckoff who wrote a great book, which I recommend called Policy and Evidence in a Partisan Age, and in it he says, quote, "Government policy is consistently oversold, to citizens, to politicians, and even to academics. It is oversold by both conservatives and liberals, in different but curiously similar ways. Over and over, we elect officials in the naive belief that they can pull some sort of magic lever to fix our social and economic problems. When that doesn't work, we ‘throw the bums out’ and elect someone else to pull a different lever or even to pull the same lever in the opposite direction, but what many Americans don't understand, but empirical studies bear out, is that in many circumstances, the government levers are simply disconnected from the problems that they are supposed to address," end quote. So Wyckoff there is talking about policy in general, but you know, I think that lesson is equally applicable for the world of criminal justice.

Which brings me to my second quote, which is from a professor at George Mason named David Wilson who writes, quote, "Most criminal justice interventions only work with people for a short period of time. For example, a court-mandated batterer intervention program typically only involves about 28 contact hours. Changing behavior that has developed over a lifetime in just 28 hours is a tall order."

The truth of the matter is that we rarely speak this kind of truth to those in power, right, whether they be government officials or electeds or foundation officers. We rarely speak this kind of truth to them. In fact, there's an enormous temptation to do the opposite, right, to exaggerate what you're going to achieve.

My father is a businessman, and he taught me when I was growing up that one of the core lessons from business is to underpromise and overdeliver, but we don't do that in criminal justice. We violate this lesson again and again and again, and I should make it clear that the Center for Court Innovation is as guilty of this as anybody else, right? We have had a number of process evaluations performed of our own work, and when we took a step back and analyzed what we learned from the process evaluations, the number one mistake that we made over and over again was that we overestimated the caseload volume. We overestimated the number of people that we were going to serve, and we did that not purposefully or not out of some bad instinct. I think we did that because we were trying to win political support and funding for what we were trying to do, so I'm not pointing fingers at other people. I'm saying we're guilty of this as well.

But there are real consequences when we do this again and again and again. You know, I think that most obviously, when we underperform, when we set up unrealistic expectations for ourselves and then fail to meet them, what we end up doing is feeding and deepening public cynicism about justice and public cynicism about government in general, and I think that we should stop, personally.

Lesson number three: Don't define success too narrowly. Reducing crime should be the central goal of the criminal justice system. I think most of us would agree with that, but this is not the only goal that matters.

So look again at my slide about Red Hook, right? Not a single one of these bullets speaks directly to crime reductions, but I would argue that — and I know this for a fact — all of these are impacts that are incredibly important for the local community, in fact, and I would argue are important for government as well. As an aside, crime is down significantly in Red Hook since we opened in 2000. I just don't have any evidence that there is a causal link between what we've done and the crime reduction, so the — hopefully the new evaluation from the National Center for State Courts will speak to that.

The larger point I'm trying to make here is that I think that our default setting is to take a pass/fail approach to new programs. Did this work or not? Did it reduce crime or not? That's an important question to ask, but that's not the only question that matters, and I think that if we want to really build knowledge in the field, we have to be more subtle and nuanced and ask a more sophisticated set of questions about criminal justice reform.

Lesson number four: The closer you look, the line between success and failure can get awful, awful blurry, right? I wish I could say that it was very easy to separate the world into tidy piles of successes and tidy piles of failures, but the truth of the matter is that there's a lot of gray out there, and so to illustrate this, I want to talk about a program that we run out of our Harlem Community Court, which is a specialized re-entry court that works with parolees returning to the neighborhood post-release from prison.

So the Harlem Community Justice Center, for those of you who know New York, is located in the heart of East Harlem, at the corner of 121st and Lexington, and as it happens, it's right smack dab in a seven-block corridor that has the highest incarceration rate of any corridor in New York City, according to the Justice Mapping Center. And so given this, we created the specialized program that worked with parolees coming back to the neighborhood and focused intense supervision and intense services on them during the first six months after they were released.

And on this slide, you'll see the results of a study that our researchers recently did into the impact of this program. So, just to be clear, the explicit goal of the program is to both reduce crime and reincarceration among participants, and when we looked, when we compared participants in the re-entry court to other parolees returning to Upper Manhattan who didn't go through the program, excitingly when we looked at reconvictions, we found a 19-percent reduction in the reconviction rate. So, you know, yay, it looks like we've actually reduced crime if you accept that as a proxy for criminal behavior.

But when we looked at technical violations, we've actually almost doubled the amount of people returning to prison for technical violations because of a supervision effect, right? We're monitoring them more closely, so we were picking up dirty urines and missed appointments and broken curfews.

So is Harlem a success or a failure, right? It's not so clear, and I can tell you firsthand, I think that we've been very scrupulous about trying to get out the results of this study, both the bad results and the good results. I can tell you that it's very hard to manage the message with something like this. If I had a dime for every person that came up to me and said, "Oh, man, I'm sorry. I heard that the results in Harlem were horrible." No, they're not. They're just mixed, right? They're contradictory, and they're confusing, and you have to parse through them. They're not bad results, and I think that we're just as a reading public — well, a, we don't read anymore, but even those of us who do read, I don't think that we're oriented towards kind of making these kind of subtle distinctions, right? And I think that further erodes our willingness — and when I say "our," the field's willingness to be honest about performance.

Lesson number five: Pay attention to politics, right? I said that some of these lessons are going to be obvious. I think there tends to be when I get — you know, when I go out for beers with my criminal justice reformer brethren, I think there sometimes tends to be two default settings in relationship to politics. Some reformers I think tend to just ignore politics, right, and pretend that reform exists in a world outside of politics. And I think the other attitude is to think that politics is wholly a negative force, right; it's the kind of thing that makes smart people do dumb things.

In reality, I think politics is pretty value-neutral. Politics can have positive impacts, and politics can have negative impacts on criminal justice reform. And a good example of this is the San Francisco Community Court, which really — you see here a picture of the former mayor of San Francisco, Gavin Newsom, who came to New York a couple years ago and fell in love with the idea of a community court — and it really was Newsom's enthusiasm that jumpstarted this project. The project couldn't exist were it not for Newsom's support.

But because Newsom was and is a controversial figure, his relationship to the program also caused it enormous problems. In fact, you see a headline here. Initially when it came up to be reviewed by the board of supervisors in San Francisco, they voted it down. In my opinion, it had nothing to do with the merits of the project and everything to do with the board of supervisors' relationship to Newsom. And so my point here is a fairly obvious one, but politics both giveth and politics taketh away, and reformers ignore politics at their own peril.

Lesson number six: Context matters. There's basically no such thing as a program that can be taken off the shelf regardless of local conditions and implemented successfully. One of my favorite musicians is a guy named Billy Bragg, and he's got a song in which he says “you can borrow ideas, but you can't borrow situations.” And I think that that's really true.

We've seen this again and again. Just because something works in one place doesn't mean it's going to work everywhere, and an example of this is the drug court movement. I think there is a growing, if not uniform consensus that drug courts actually work, that they have shown that they kind of reduce crime and reduce substance abuse among participants, but that doesn't mean that every drug court is a success. And indeed, in recent months, we've seen drug courts generate a lot of pushback in part because there's some examples of bad practice out there. Let's be honest about it.

In the Trial and Error book, we look at drug courts primarily through the prism of leadership, and in general, leadership transitions are very important moments for criminal justice programs. In general, lots of criminal justice reforms are created by highly charismatic individuals who inevitably go on to do other things, and I think the lesson here is that if we're serious about making criminal justice reforms stick, we need to be less reliant on heroic individuals and more reliant on institutions really that can sustain change over the long haul.

Lesson number seven: To quote The Roots and Chinua Achebe, things fall apart. Just because something works once doesn't mean it's going to work forever and ever, and the example I like to cite is Operation Ceasefire. Does everybody here know Operation Ceasefire in broad strokes? So, remarkable, remarkable program from my perspective — and the best description, if any of you haven't read Pulling Levers by my friend David Kennedy, I encourage you to read it. It's one of the more provocative criminal justice articles that I've read.

Anyway, so Ceasefire, this collaboration between local clergy and probation and criminal justice agencies and academics from Harvard and street outreach workers achieved some phenomenal things in the 1990s in Boston and have been credited with reducing youth homicide dramatically. And Ceasefire achieved success that very, very few programs ever achieved success at this level, right? — cover of Newsweek magazine as you see there, trips to the White House, millions of dollars in grants. And in the midst of all this great success, the program fell apart.

Why did it fall apart? There's a saying that failure is an orphan, but success has many parents, and I think that this was really true in the case of Ceasefire. The great strength of this program was its interagency collaboration, but it was also the interagency collaboration that ended up killing the project. In the aftermath of the Boston Miracle, there were very intense fights over public acclaim and who got credit for what.

And so the key line — this was actually a quote from an op-ed that a street outreach worker, a guy named Teny Gross, wrote in the Boston Globe — and the key line here obviously is the beefs on the streets are what get the headlines, but it's the beefs in the offices and the agencies that are equally to blame for what is happening on the streets. So my point here is just when you buy a stock, they say past performance doesn't guarantee future success. I think that's true in the criminal justice system as well.

Lesson eight: This is maybe a little bit of pandering to NIJ, but reformers should invest in research, right? Self-examination is vital to the long-term health, not just of reform efforts, but of the entire field of criminal justice, and we've seen this play out most recently in England with the community court in North Liverpool. So the North Liverpool Community Court has probably gotten more press attention than all the other community courts in the world combined. It's actually the subject — there's a lightly fictionalized TV drama now on the BBC that I encourage you to Google if you're interested based on the North Liverpool Community Justice Center, and the North Liverpool Community Justice Center was created and instigated really at the highest ranks of the British government. The home secretary himself at the time, a guy named David Blunkett, was intimately and personally involved in pushing the program forward and selecting the location. And as often the case when high-ranking officials get involved in something, there was enormous pressure to implement this project immediately, like yesterday.

And in the rush to implement it, they really didn't think through or there wasn't time to build an effective information architecture, and that's all fine and dandy when times are good, right? But times aren't so good right now, and so there was a recent study of the Liverpool project, and it concluded, and I quote, "In practice, data collected is not routinely shared with center staff or in some cases appears not to be collected at all. This is not to say that the center isn't achieving significant outcomes, but that it is unable to demonstrate effectiveness." North Liverpool has found itself without adequate capacity to respond to those critics who rightly or wrongly question both the efficacy and the cost of the project.

So we all know that when times are tough, there's enormous temptation to kind of jettison things like research and development as, quote/unquote, "luxuries," and I guess I would argue that the opposite should be the case, that criminal justice officials should go in the other direction and double down on research and deepen their investment in research because it's only research that will enable us to make policy arguments that are grounded in data. It's only research that will enable us to kind of rescue flagging initiatives if they start to fail, and it's only research that will enable us to prevent today's innovation from becoming tomorrow's conventional wisdom that needs to be overturned.

Lesson nine, and this is my final lesson: Failure is part of success. So the criminal justice system, as I think all of us in this room know, is incredibly impervious to reform.

My friend Tim Murray from the Pretrial Justice Institute likes to say that no matter how much you poke it, twist it, or massage it, the system has a remarkable ability to return to its original shape. So the truth of the matter is I have no idea how to guarantee success in criminal justice reform, but the truth of the matter is that no one does. I do know how to guarantee failure, though, and that is to stop innovating, to stop testing new ideas.

What we should be doing as a field is encouraging criminal justice practitioners to fail again and again and again, so that like Michael Jordan, they ultimately succeed. Thank you.


Laub: Thank you very much. We have time for questions.

Zoe Mentel: Hi. I'm Zoe Mentel. I'm with the U.S. Department of Justice COPS office, and you've spoken very eloquently and persuasively about why some good projects, some well-intentioned and smart innovations have failed, and I was wondering if you could speak a little bit about why some failures still persist. I'm thinking things like take-home cars reducing crime, or preventative random patrol; those types of things that are still done regularly in the field, despite all the evidence and research to the contrary.

Berman: Well, I do think that there are examples of that, and I guess I would say two things. One is I think that the current focus now on evidence-based policymaking is pushing very strongly against that, and I think it's one of the real achievements of Laurie Robinson and John and everybody in this room that have been working on that.

When I started doing this work, you really could — I don't want to overstate it — but you could get money for projects without much, without much evidence at all, without even referring to data. That's basically impossible now, both on a local and a federal level, so I think that we're going to see less and less of that.

The other thing that I would say is that sometimes things that sometimes look like failures are not actually failures, right? And I think about Ed Latessa, who I know had spoken at this forum in the past, that there are some programs that you really have to look at with a fine-tooth comb, and if you look at how they're working with different populations, you find that, lo and behold, they might be having a negative impact on low-risk offenders, but they're actually having a very significant impact on high-risk offenders. And so I would just caution you that sometimes things that ostensibly look like a failure, sometimes there's elements of success even within programs that sometimes look like they're not achieving results.

Marlene Beckman: Marlene Beckman, OJP.

Greg, I was here when the Midtown Community Court first started. I was here at OJP when we —

Berman: Right.

Beckman: And I remember that we gave a big grant program to fund a lot of community courts around the country. Indianapolis, I remember, was one.

Berman: Mm-hmm.

Beckman: And so I'm going to ask you a difficult question: How come community courts haven't caught on in the same way that drug courts, now re-entry courts? It's been a long time, and we don't have — we don't hear people talk about community courts a lot.

Berman: So, that's a good question. Thanks, Marlene. I guess I have a couple of answers to that question.

The first is that we very explicitly, in doing this stuff — and this may not have been your intention, I don't know — but our intention was never for there to be hundreds of community courts in fact, and we've never thought of it as a cookie-cutter model that was appropriate for lots of different places.

I think that what we have said is there are some places where a community court is probably appropriate, but what we're at the Center for Court Innovation more interested in is promoting the use of some of the principles and practices that happen in our community courts. And on that front, I think that the uptake has been great indeed, actually.

The other thing that I would say is that, you know, I think you have to — it's what you're comparing it to, and I think that sometimes community courts get compared to drug courts, right? Well, drug courts are great, and we run a drug court or have run a drug court in New York, and I think they're wonderful enterprises. They're much more modest enterprises than community courts, right? They're trying to work with a much smaller population. They're trying to work in existing courthouses with one judge. That's a very — that's a much easier lift, in fact, than creating a community court.

So I guess my answer to you is twofold. One is they're just more ambitious projects, and so you're going to see less of them, and two, I would chart their success not by replication but how far the principles and practices have spread.

Kim Norris: I think there's a big difference, though. The federal government has given millions to drug courts over a long part of time. I don't know that we ever gave money to fund community courts. I think we gave money just to Red Hook, and now there's a line item for re-entry courts. So the federal government has not actually supported direct funding for community courts.

Norris: That may —

Norris: I have been trying for five years to get that, so I think that really does matter and has made a difference.

Anne Blackfield: My name is Anne Blackfield, and I'm from the Community Justice Clinic at the Maryland School

of Law.

Berman: Oh, sure.

Blackfield: I actually taught Trial and Error to my students.

Berman: Oh, great.

Blackfield: And there was one question they asked me and we couldn't work through as a class, so I thought I'd take this chance to ask you.

There was one chapter where you talk about the brief attempt to institute Three Strikes in Connecticut, and the chapter really talks about one individual, Michael Lawlor's — you know, his attempts to prevent Connecticut from passing that as a reaction to a really horrific crime. And the question students asked me is do you find that example to be sort of contradictory to the other examples where a lot of the reasons — or throughout the book, you talk about the importance of interagency collaboration and how, as you said earlier, you can't have one heroic person, you need institutional support. But then like how do you contextualize the fact that it seemed like Michael — like there's one person who really — is a room in reform for just one person really, and so —

Berman: I think I understand what you're saying.

Blackfield: Mm-hmm.

Berman: Let's not make mistake. Individuals make a difference, and I think that one of the things — and I don't mean to disparage Mike because he's a great guy, but you know, Mike's brand of leadership is not the charismatic, you know, "let's storm the hill," you know, "once more into the breach" kind of leadership. His brand of leadership is a much subtler, behind-the-scenes kind of leadership, and so even though that chapter kind of exalts Mike Lawlor, I think it's still arguing against this kind of gunslinger brand of leadership that is so prevalent not only in the criminal justice system but in other parts of other realms of social policy.

And the other thing I would say, we had that chapter in part — We submitted the draft to a bunch of people, and one of the things people said was, "Man, this book is a downer. It's all about stuff that failed," and so we wanted to have a chapter where there was some kind of rays of light as part of it and had a happy story, and so that's why. I think it may even be the final chapter of the book.

Laub: If I could just ask —

Berman: John.


Laub: John Laub, National Institute of Justice

The lesson, I mean, I was looking at the Michael Jordan picture, and yeah, we know he lost 300 games, but he also has six world championships. He may have missed 26 shots, but he made 26 more than I'll ever dream about. So I guess the question is, would we benefit from some juxtaposition of success and failure? I mean, we know Michael Jordan was an unbelievable basketball player because he had the ability to, from the top of the key somehow, magically fly through air to the basket, but do we know in a criminal justice context what the successes are and why they were in contrast to what the failures were and why they failed? In other words, would it make sense to do a case study of successes in the systematic way that you look at Trial and Error?

Berman: Yeah, I think it would, and I think that, you know, one of my enormous frustrations — and this may be changing. Frank Zimring is about to come out with a book on this topic — but from my perspective, you know, what's happened in New York City over the past 10 or 15 years is probably the most important criminal justice story, I would argue, and it may be a parochial argument. It's probably the most important criminal justice story, if not in the country, if not in the world, right? I mean, New York had a real problem with public safety. New York was losing population to the suburbs because people were scared to live in New York. That is not the case, as you know from living in New York, anymore.

Do we know why with any degree of certainty, why New York has turned around? And I should also underline a part of the New York story that is fascinating to me. New York has not only reduced crime to a level that no other city has, has done it while cutting its incarceration rate. Do we understand how and why that happens? No. And so I think it really is important to look, you know. As important as it is to look at the failures, I think it is important to look at the successes as well.

And I would say that one of the things that we're trying to communicate through the book of interviews, the Daring to Fail book, I mean, we chose people that are successful people, right? We didn't choose people that you've never heard of that have not accomplished anything in their lives. These are people that have done good stuff in the world, and I think that through the prism of failure, they're also actually, of course, talking about success at the same time.

Laub: All right, thanks.

Thomas Feucht: Tom Feucht from NIJ.

I wanted to ask you a particular question about community courts and then see if it plays into this broader issue of success and failure. The particular question about community courts is, is whether a key ingredient to their success is building a community court de novo, right, sort of in a fresh place, brand-new from the ground up, rather than trying to splice one on or remake an existing court. And I wonder if that's an aspect in what distinguishes successes and failures, that brand-new things are more easily, are easier made to succeed, and sort of modifications to existing things are more difficult.

Berman: I think that that's a good point.

And so in Red Hook, as I said, we renovated a building and kind of designed it to our specifications from scratch, and there's dozens of people that work in that building. Most of them don't work for the Center for Court Innovation, right? They're probation officers or legal aid attorneys or court administrators, but there's this — and I don't want to overstate it, right, because they're responsible for what they do — but there is a sense in which we control the envelope of the building, and that gives us an ability to influence institutional behavior in a way.

And by contrast, one of the community court's projects that we've been involved with that I haven't talked so much about is up in the Bronx called Bronx Community Solutions, and in the Bronx what we did was not choose just one neighborhood in the Bronx and not work with just one drug, but rather trying to bring the community court approach into a very busy urban criminal courthouse and work with dozens of judges and, you know, tens of thousands of defendants.

And there's pluses and minuses to that approach. I mean, what we're trying to do is kind of go to scale with the community court approach in the Bronx. I think the great plus is last year, 15,000 — I'm probably misquoting it. Like I said, I'm not a numbers guy — but I want to say we did 15,000 cases through Bronx Community Solutions last year. That's an enormous volume, and so you do get scale, right? And we've changed sentencing practice for 15,000 cases.

On the flip side, because Bronx Community Solutions is just one program within a large courthouse, much, much harder to influence the behavior of some of the institutional actors, and so things that I'm most proud of about Red Hook — the court officers at the door who run the mags in Red Hook, they do Little League with the kids; they do a coat drive at Christmas time for local people. I mean, they really are ambassadors for the project in this very powerful way. We haven't had that same impact with court officers in the centralized Bronx courthouse.

And so I think it's fair to say that it is easier when you segregate reform, and when it is this off-to-the-side thing, it is easier to change behavior in those projects. I don't think there's any — or at least it has been in our experience.

Nancy Ritter: My name is Nancy Ritter. I work at NIJ's Communications Division, so I feel like a huge part of my life is about managing the message. I don't know if I'm going to be able to frame this question right, but the mixed message thing when you're dealing with policymakers: so we do our research, we get our results, and we disseminate however we disseminate. We do webinars. We do long pieces discussing the results in depth, and then we do our two-pagers for the Hill. And we're forced to really reduce the message, particularly with this emphasis now on evidence-based and what works.

So can you give us a couple of ideas of how to manage that message when you're talking about making it focused and direct and speaking to the policymakers when their bottom line is: did it work?

Berman: Can I pass on any of these questions?


Berman: The truth is I don't have the answer to that, but what I do know is that we should be honest with ourselves, right? And I just — you can't insist on nuance in every conversation. When you're having a conversation with a reporter, when you're having a conversation with a busy Hill staffer, you're right: They don't want reams of data. They don't want a complicated story. But if we never push back, if we never give them the real story, if we never talk honestly about these projects and what their results are, it just kind of feeds this negative loop, and so I don't know how to do it.

I'm here today. This is my small effort to do that, right? It's my small effort to talk honestly about how I see the field and how I see the work of my agency, and I don't mean to say that I'm some heroic person, but I think that we are all capable of talking honestly and openly. And over time, if we all do that, I think it will shift the culture, but I agree. Standing here on April 20th or whatever today is, I don't know how to do it. It's very, very hard because there are circumstances where you have to be reductive. That's just the reality.

Heather Fogg: My name is Heather Fogg. I'm with the University of Maryland Institute for Governmental Service and Research.

In some ways, I think that question was an excellent one that helps me to frame my own that I was struggling with at the same time, and one of the questions I have is around this idea of we're talking about criminal justice which has real concerns for public safety, and so I think that's one of the challenges in and of itself to innovation in a way that mistakes can lead to failures that are highlighted as "and look what that did to public safety."

So one of my questions is when it's one of those things where with development over time and evidence-based practice and getting that message out might help in this regard, but what is your take on kind of the expansion of these ideas into areas that are risky for innovation, into areas that look at high-risk offenders rather than more of the quality-of-life kind of crimes that we tend to experiment with more in a safer context?

Berman: Well, I think that you highlighted a real — I think it's a good question, and I think it's a real issue. And you know, I live in fear. A number of our projects — I haven't highlighted them today — work with very high-risk offenders who have done really seriously bad things, and you know, the theme that runs through a lot of our work is trying to promote alternatives to incarceration, and so we're doing stuff that I think does look risky.

And so, you know, I guess two things occur to me. One is just kind of a crass, pragmatic thing, which is you build up credibility with elected officials, with government officials, and with the media over time. And we've got some credibility now which gives us a little bit more room to take on riskier things. And so that's one thought.

And the second thought is, you know, one of the problems that I think we have in this field, and it's not unique to criminal justice, is that our time horizons are so short, you know, that we tend to — not only are we incredibly reductive — did this work or not? — but we want to know did it work after 12 months. That's not enough time. I think the maximum time that we think about are kind of maybe two-year or four-year electoral cycles, and I think if we were serious about this work, if we were serious about some of these ideas, we need to be thinking of this as a generational change. And I think it's going to take time.

From my perspective, it's weird to say because I've written this whole book about failure; in some ways, we're living in a golden age of criminal justice reform, right? And the conversation about crime has changed dramatically over the last 10 or 15 years, and I would argue to the better. And so I think it's important to have that kind of time horizon when one thinks about these things and not just be thinking about what happened in the last six months. And I think the real challenge for that is the one that you raise, which is that in the short term, bad things are going to happen, right? An individual offender is going to go off and do something awful, and how do we have some of these ideas embedded so deep that they're not tossed aside just because one person did some cockamamie thing.

Laub: Won't you join me in thanking Greg for a thoughtful talk?

Berman: Thank you. Thanks. I appreciate it.


Date Created: August 29, 2019