Coffee and Cake:
Barriers to Justice Reform
November 2017
New York's juvenile and criminal justice systems are in dire need of reform. System contact frequently fails to produce outcomes that reflect or address individual offender and community needs, and comes at a price requiring unsustainable levels of taxpayer support. Even if system costs did not consume resources that would otherwise be available to fund a wide range of equally important government services, would we be satisfied with how our justice system operates and the results it yields? If the primary goal of any legal system is that all community members have equal access to justice and are treated fairly and with respect, the answer is an unequivocal no.
Many system stakeholders and observers, in particular those mindful of compelling evidence that the current system disproportionately fails some of us more than others, agree that change is necessary. That said, a number of barriers cause meaningful justice reform to remain elusive.
Institutional Inertia
Newton's first law of motion applies to large systems and organizations as well as ocean liners. "An object in motion continues in motion with the same speed and in the same direction unless acted upon by an unbalanced force." The justice system, like ships the size of cities, operates under a full head of steam and generates massive momentum. Anyone and anything that lingers in their path will be crushed by their sheer mass. Slowing either down and/or changing their direction requires careful planning, timing and execution. A single miscalculation or misstep can cause devastating results. When justice reform is attempted in this kind of environment, the safe objective is almost always a minor, mid-course correction in the form of incremental outcome improvements, and not a fundamental sea change.
The Newton's Law analogy is not only instructive, but ironic in that system reformers are cast in the role of an "unbalanced" force. Indeed, working to change the justice system is regarded by many as a fool's undertaking.
Resource Competition
Many system players are under constant fiscal pressure and struggle to stretch available resources simply to maintain the status quo, having already jettisoned policies and programs long considered essential. No matter how often their budgets are cut, there is still an implicit expectation that the agency or organization can and will "do more with less." The implication, intended or not, is that their previous operations had been inefficient, if not wasteful. This creates a siege mentality that reinforces the belief that improving system outcomes is unaffordable and hence unattainable. From the perspective of leading reform initiatives, the people and agencies that always should, rarely do. Again, the ultimate result is, by default, a focus on incremental outcome improvements and not sweeping change. These efforts, while potentially productive, run the risk of telegraphing the message that the system is in fact fundamentally sound and only minor course corrections are required.
Increased Liability
Justice system executives and decision-makers are inherently risk-averse and typically tread even more lightly when they find themselves poised at the gates of the Land of Unintended Consequences. This is a place where tried and true policies and procedures are sacrificed at the altar of change in the name of improved outcomes. It is also a place where careers are sacrificed when outcomes, and sometimes just one outcome, are negative. In government, it is far easier to justify things having gone wrong when long-accepted protocols are relied upon but happen to fail in a given situation. There is an established track record of success, or at least perceived success, to fall back upon when individual cases yield unexpected and unacceptable outcomes. The "this-is-how-we-always-did-it" defense (see Institutional Inertia) deflects responsibility from individuals and spreads potential liability throughout a faceless system.
It is much harder to justify a negative outcome when it is a consequence, and even worse an unintended consequence, of change. This is particularly true when the change is initiated over the objections of other system players committed to the status quo, based on their own fear of something going wrong. The tortured truth is that too much about our system has already gone terribly wrong. But as stakeholders, we minimize our exposure to personal and professional liability by embracing incremental system improvements within the context of business as usual, as opposed to fundamental reform. The less we change, the less we can do wrong.
Coffee and Cake
The weight of institutional inertia, the reality of resource competition and the specter of increased liability all conspire to discourage meaningful system reform. These barriers, real or imaginary, limit the very discussion of how to reinvent our broken Wheel of Justice, which wobbles as it spins, jerking forward and stopping abruptly, dependent mostly upon whose turn it is to spin. These discussions nonetheless religiously take place - weekly, monthly, quarterly - in windowless conference rooms dominated by an outsized table surrounded by mismatched chairs. These chairs are occupied by too few stakeholders with decision-making authority and a far larger number of mid-level managers and line staff charged with reporting back to their largely disinterested bosses. Collectively, these gatherings of individuals are called work groups, task forces, coalitions or collaboratives. Their names are either unpronounceable acronyms, or a collection of initials that form something word-like but poorly reflect the group's purpose.
As often as not, the meeting is a grant deliverable - a required activity to qualify for funding, as evidenced by the circulation of two sign-in sheets. One is to remind the meeting organizer who the players are who actually attended. The other is to get paid. Hot-button issues frequently receive funding to support identification and clarification of a problem, consensus building around a possible solution, and implementation of an approved action plan. Inevitably, funded initiatives are more about the process and less about the results, but any expenditure of tax dollars creates the impression that government is responsive and change for the better is on the horizon.
Funded or not, every meeting will feature some kind of refreshments, at a minimum coffee and cake. These are the most insidious barriers to fundamental system reform. Their mere presence conveys a message of hospitality and congeniality, setting the tone for all that will and, more importantly, will not follow. No matter how big or small the issue at hand, no matter how potentially negative the outcome if unresolved, reform decorum dictates that every effort will be made to challenge the status quo as little as possible. All participants will leave the meeting still secure in their knowledge that they are highly motivated and impeccably well-intentioned leaders and practitioners and that their agency and personnel are already doing everything possible to make things better, not that things are all that bad to begin with. Those who do not honor this simple code suffer the ultimate would-be-reformer fate. They are not invited back for more coffee and cake, their keeper-of-the-status-quo credentials forever suspect.