Technically, we are all criminals. Everyone has broken a law at some point in their lives. The difference is who gets caught, and who doesn’t.
As a teenager and into my early 20s, I used a Schedule I illicit drug—I smoked pot. But I didn’t get arrested, so I was able to graduate from law school and become a lawyer. But what about those who do get arrested?
Over the last 20 years, criminal justice professionals began to recognize that even the simple act of charging someone with a crime can have lifelong consequences.
Now everything remains on the Internet forever, for everyone to see. It becomes difficult to get a job if you are a “thief.” Good luck getting college loans—or becoming a professional—if you are a “drug user.”
As a young prosecutor, Douglas County Attorney Mark Fruehauf used to think crime and deterrence were simple. “[I used to think] you commit a crime, you do jail, you’re not going to like jail, you’re not going to want to do the crime again. And of course the reality is much different.
“There’s so many forces beyond just that simple equation...I learned very quickly that there’s so many more intricacies to the system: A person’s upbringing, drug abuse, mental health issues, that kind of thing."
Specialty treatment courts focus on rehabilitation in a way that the adversarial criminal justice system is poorly equipped to address. St. Louis County has treatment courts for drug offenses, offenses committed by veterans, drunk driving, and others.
“When addicts are sent to prison,” says Fruehauf, “it’s not because they’re bad people. It’s because they can’t dig themselves out of that hole. They just can’t. The treatment court that we have is proof that when these resources are put there in front of people, and they’re given the opportunity to climb out of the hole, they will—and they do.”
Another reform involves “evidence-based decision making”—the use of objective data to guide decisions such as whether to cite-and-release or arrest someone, or whether pretrial release is appropriate, and to fund programs that reduce the risk of re-offense.
“It’s a huge thing that can be done in so many different areas of the criminal justice system,” says Fruehauf, “Trying to individualize each specific defendant and know what’s going to lead to the best outcome in this case. So [you] look...at specific data you can pull from each defendant that comes through the system, and then compare that to reliable methods and principles that are used to assess those factors”—decisions such as who gets charged, who gets cash bail, or the length of incarceration.
Evidence-based methods are changing the decisions made by police officers to arrest, and by prosecutors whether to charge someone with a crime. “The act of charging [a person] with...any crime, even if you’re acquitted in the future, or [the conviction is] expunged, there’s still harm that can come from that, obviously, because there’s a record of it somewhere.
“If we had an evidence-based decision making tool for certain crimes and certain offenders, where there is some kind of pre-charging diversion, where we’re not unduly depreciating the offense, but [the defendant] is still learning their lesson, society is better off because they’re in a better position to be a productive member of that society.”
Superior Police Chief Nick Alexander introduced the “Pathway To Hope” program in Superior, which allows non-violent drug offenders to enter pre-diversion treatment to avoid being charged with a crime. An individual caught in possession of heroin, illicit opioids, or methamphetamine may be eligible for the program. Those dealing drugs are not eligible. Addicts can petition to enter the program even if they haven’t been arrested.
An individual who is committing nonviolent crimes, such as theft or fraud, where the root cause of these crimes is drug addiction, may also qualify, although the crime victim’s viewpoint will also be considered.
Funded by grant money, the Pathway to Hope offers almost-immediate access to inpatient and outpatient treatment, as well as transportation to and from treatment. Relapse does not automatically result in discharge. Successful completion of the six-month program means the person will not be charged with a crime and viewed as an “offender” for the rest of their lives.
Across the bridge, Duluth has a retail theft pretrial diversion program. In partnership with Super One grocery stores and the City Attorney’s Office, shoplifters have the option of completing theft education classes to avoid being prosecuted for a crime that can have a devastating impact on their ability to ever get a job.
Douglas County is preparing to launch a community service program that will allow shoplifters to pay restitution and do community service as a post-conviction condition of probation or in lieu of jail.
Superior recently passed an ordinance decriminalizing first-offense possession of cannabis. “We’re not saying that it’s legal,” says Alexander. “It’s still illegal...but we’re going to look at how we deal with a first offense [because a possession] charge can have lifelong consequences”—in Wisconsin, a second offense can be a felony.
When a defendant enters the criminal justice system, usually upon arrest, they are immediately faced with one of the most important decisions affecting them: Will they be released from custody or not?
In both Wisconsin and Minnesota, an arrestee is eligible to be released from jail by posting cash bail to guarantee their appearance at future hearings. If they fail to appear, they forfeit bail and don’t get their money back.
By law, a judge can only order cash bail if there are grounds to believe the defendant is likely to miss subsequent hearings. The reality, however, is those without money end up sitting in jail—often on the most arbitrary reasoning by the court—when they have not yet been convicted and are supposed to be presumed innocent.
The “Minnesota Pretrial Release Initiative” began on November 1. When someone is arrested, a probation officer will collect extensive information and make a numerical assessment of the defendant’s risk to the community. A judge still makes the ultimate decision, but the assessment offers a more objective means of determining the appropriateness of pre-trial release.
The Pretrial Release Initiative attempts to minimize racist and classist release decisions by intentionally excluding the defendant’s residential address.
It also eliminates “bail schedules,” which guide judges to impose a bail amount based on the type of offense, rather than on the defendant’s risk to the community and likelihood of not showing up for further proceedings.
Douglas County’s bail system remains more arbitrary—much to the chagrin of its chief prosecutor. “I don’t hate cash bail,” says Fruehauf, “but I hate that we go up there [to the courtroom], and it’s just throw a round number out there...A $500 cash bail for one person does not mean the same thing to another person that has the same bail. Is $500 a lot for this person? Is it a little bit for that person? Are they going to care if they post it and get out [of jail] and don’t come back [thus forfeiting their bail]?”
Fruehauf is concerned about “doing harm to them if they’re sitting in custody on a lower level offense, and they can’t post 500 bucks or 400 bucks or whatever...I’m recommending a number based upon the information that I have, but I question whether that’s enough information to make the right recommendation.”
Forfeiting bail is one of many trivial reasons that a person might wind up with an outstanding warrant for their arrest. Another is failure to pay a ticket. Or forgetting about a meeting with a probation officer. Even a non-criminal can get slapped with a warrant if they don’t realize that receiving a subpoena means they have to appear.
Many people don’t even know they have a warrant out for their arrest, and many more are living like fugitives. If picked up by police on an outstanding warrant—even many years later—they receive higher cash bail, can’t post it, and linger in custody at taxpayer expense. Many of these people lose their jobs; if they don’t have child care options, they may lose their kids.
To address this, Duluth and Superior have a “Warrant Resolution Day.” In both jurisdictions, the goal is to clear a warrant without arrest. Those who meet certain criteria can come to a neutral location to meet with judges and lawyers to resolve the warrant.
Duluth has held six Warrant Resolution Days in the last year and cleared 190 warrants. Superior’s first Warrant Resolution Day in October cleared about 20 warrants.
Is criminal justice reform in the Twin Ports working? Ultimately, it’s only those with the least privilege—who are most likely to be crime victims and to be victimized by the system—who can really answer that. But the shift towards treatment, diversion, and objective, research-based sentencing are a welcome and promising change.