“What Our Service Taught Us About Criminal Justice Reform”- A Different View

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Bill Montgomery writes a response to an editorial published in Forbes on February 6, 2017, entitled “What Our Service Taught Us About Criminal Justice Reform” by Mark Lucas and Max Rose.

Like Mr. Lucas and Mr. Rose, I served as an army officer in combat, specifically as a tank platoon leader in the first Gulf War. After leaving active duty, I attended law school and became a prosecutor.  For the past six years, I have had the honor and privilege of serving Maricopa County as the elected County Attorney, which means I am responsible for one of the largest prosecution offices in the nation.  While I appreciate and respect their service as combat infantry officers, I very much disagree with their editorial.

While “fighting for freedom abroad”, I learned different lessons than Messrs. Lucas and Rose. My military service taught me that the rule of law (notwithstanding the law of land warfare), due process, and individual liberties generally do not exist in combat zones.  As a result, I learned that freedom is one of the first casualties in combat, and this lack of freedom reinforced my view that the United States Constitution and Bill of Rights are the most important and enduring social contracts in human history that creates a form of government charged with protecting freedom. 

It is difficult to understand how deploying to Afghanistan, a country that was previously oppressed by the intolerant Taliban would lead anyone to conclude that by comparison our system “denies freedom” to people.  I suspect that criminal defendants in Afghanistan and many other countries envy the rights and procedural due process that our constitutional republic affords to criminal defendants.

My experience as a prosecutor has taught me to fight fiction with facts.

The authors first repeat the fiction that America imprisons “low-level and nonviolent” criminals. In Arizona, however, multiple studies have found that over 95% of prisoners are violent or repeat offenders.  Similarly, the Department of Justice’s Bureau of Justice Statistics has consistently found that less than 20% of the prisoners in the United States are serving sentences for low level drug offenses. 

They then suggest that Afghanistan villages have more trust in their police and coalition forces than American communities do in theirs. Not only is this suggestion an insult to law enforcement professionals in the United States, it is also demonstrably false to the extent it claims there is a lack of trust of law enforcement in the United States:  An October 2016 Gallup poll found that 76% of adults in the United States have a “’great deal’ of respect for local police”, which is near record highs. 

I would add that many law enforcement professionals from the United States deployed to Afghanistan, and along with our troops, trained local forces in policing, which is a testament to their competence, commitment, candor, and courage.

Using former army officers to repeat false claims about criminal justice does not make them true. And having served as a military officer and law enforcement professional, I know that experience in one field does not make one an expert in the other.

Armed primarily with fiction, the authors concluded that giving federal judges more sentencing discretion, enabling juveniles with non-violent records to have their records cleared, and encouraging states to stop trying minors as adults are sensible reforms.

There is already evidence that more sentencing discretion for federal judges may not improve the system at all. The federal sentencing guidelines have largely been advisory since 2005, and in a 2011 report, the United States Sentencing Commission found “increasing inconsistencies in sentencing practices” due to increased judicial discretion.  This is likely unsurprising to those who recall that a primary goal of the Sentencing Reform Act of 1984 was to reduce disparate sentences, which were primarily detrimental to minorities.  In my view, a reform that increases disparate sentences for similarly situated defendants is not sensible at all.

As a conservative, I believe that criminal justice is a police power primarily reserved to the states by the Tenth Amendment to the United States Constitution. It is difficult to understand how the conservative author supports measures that would essentially federalize juvenile justice by commandeering the states when it comes to charging juveniles and clearing their records.  For the liberal author, supporting these reforms is easy to understand because they increase the size and scope of the federal government and ignore our system of compound federalism.

Where the authors and I might agree is that most criminal convictions should not prevent a person from leading a productive life after successful completion of a sentence. In Arizona, my office works with officials from various agencies on recidivism reduction because those who genuinely seek a second chance in life deserve one.  And society benefits when an offender chooses a productive rather than destructive lifestyle.  

Our criminal justice system, like our military, is not perfect, but both are second to none. There is always room for improvement, but reforms based on fiction will not protect the country and citizens we mutually dedicated our lives to serving. 

The Forbes article, “What Our Service Taught Us About Criminal Justice Reform” by Mark Lucas and Max Rose can be viewed at the following link: https://www.forbes.com/sites/realspin/2017/02/06/what-our-service-taught-us-about-criminal-justice-reform/#72f03f7f5555