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Three Reasons Why Smart Is the New Dumb on Criminal Justice

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For decades, the political debate on criminal justice in the United States has been dominated by the swaggering, get-tough crowd. Jail more of 'em, jail 'em for longer, make their lives miserable when they come out -- this has been the conventional wisdom. Politicians from Richard Nixon to Bill Clinton have scored political points by vowing to crack down ever harder on crime, including for drug offenses. Our country now has the highest incarceration rate in the world.

Yet this approach isn't what researchers say works best. It's hard to imagine a worse approach to public safety than relegating drugs to the black market, isolating parents from children, making it virtually impossible for ex-offenders to reintegrate into society, and spending tax dollars on warehousing people rather than on job and crime prevention programs. We have been dumb on crime. And those who've spoken up for smart policies have been maligned as linguine-spined liberals. Like in junior high school, being a brainiac got you picked on; acting like a meathead got you honored.

But times are changing. In just the last several days, we've seen three big victories for those who believe our country should be smarter on crime. Indeed, this may be the single best week for criminal justice reform in a generation. And it suggests we may be on the verge of a transformation in American politics.

The most publicized victory was Eric Holder's speech on Monday to the American Bar Association. He acknowledged the criminal justice system is "broken" and requires a "fundamentally new approach" that is "not merely to convict, warehouse, and forget." Specifically, he promoted reforms including:

• No more mandatory minimums for many low-level, nonviolent drug crimes.
• Allowing more elderly prisoners to be released.
• Making it a priority to prevent crime and help the formerly incarcerated reenter society.
• Coming up with recommendations to reduce racial disparities in sentencing.

No one in Holder's position has given a speech like this, at least not in the United States. This was historic. And though we have a long way to go before these proposals become reality -- and even though the U.S. Attorney has a direct effect only at the federal level, not in the state and local jurisdictions where most criminal justice policy is set -- Holder's words mark the mainstreaming of facts and fairness in our national discussion of criminal justice. That's a big deal.

A less well-known victory this past week was on prison phone rates. The Federal Communications Commission (FCC) finally ruled on a decade-old petition to cap the rate that phone companies could charge for calls between inmates and family members. The for-profit phone racket was leading to 15-minute phone calls that cost upwards of $17. Imagine being in a low-income family that wants to keep the kids connected to their father or mother in prison. How are such exorbitant rates remotely feasible? They aren't. And they haven't helped public safety, either, given that maintaining community connections while in prison is important to minimizing recidivism upon release. The FCC recognized these realities with a 2-to-1 ruling that limited interstate rates at 25 cents a minute for collect calls and 21 cents a minute for calling cards. The ruling doesn't cover calls that take place within the same state, but it's a big step forward.

The third victory was a ruling from a federal judge that New York City's stop-and-frisk policy is unconstitutional, at least as it's now being carried out. Judge Shira Scheindlin ruled that the policy was racially biased and therefore violated minorities' 14th amendment right to equal protection under the law. As of early 2012, more than 1800 stop-and-frisks per day have been conducted in New York City, on average -- and about 85 percent of those stopped have been black or Latino. That's disproportionate even when accounting for higher crime rates in minority neighborhoods. These stop-and-frisks are supposed to happen only when there's a reasonable suspicion of a crime, but just 6 percent of them lead to an arrest. Looks like those suspicions aren't very reasonable after all. So instead of stopping crimes, the policy has fed distrust of cops in communities of color, making it less likely that people will talk to the police to help solve real-life crimes. The judge's ruling requires federal oversight and reforms of the program.

This trifecta of Holder's speech, reduced phone rates, and reform of stop-and-frisk has meant a glorious few days for the panoply of organizations pushing criminal justice reform. It's now becoming fashionable to think and act intelligently on the issue. Forget the passé poseurs who mouth platitudes like, "Do the crime, do the time." We appear to be entering an era of geek chic -- an era in which smart just might be the new dumb.