Nicole Fortier is a Counsel in the Justice Program at the NYU School of Law’s Brennan Center for Justice. At the Brennan Center Ms. Fortier focuses on issues of mass incarceration, criminal justice policy, and systematic funding structures. Recently, as an associate editor, she helped publish Solutions: American Leaders Speak Out on Criminal Justice, which included essays written by Hillary Clinton, Marco Rubio, and Chris Christie.
BPR: How do you explain the recent resurgence in criminal justice reform discussions, especially from Republicans?
NF: A lot of the resurgence has to do with states having many successes once they started to reverse course on [1980s and 1990s tough on crime policy] and having success in both reducing crime and saving money. That really primed the field to talk about criminal justice more. Back in the 1990s, people were labeled either “soft on crime” or “tough on crime” as a political maneuver and Democrats were often considered to be too “soft on crime,” or at least that was the label put on them. In recent years, the fear that the rhetoric could return and target Democrats was still very much alive, so I think Democrats took a backseat while Republicans said: “We have to do something about this.” What we’re seeing now, on the political level, is Democrats finally stepping up too and saying: “We’re willing to work on this as a bipartisan effort. We’re willing to work with Republicans to work on these issues”. So that’s really exciting. In the last few years, with Ferguson in particular and everything the media has highlighted since, criminal justice has become a national conversation. Whenever you want politicians to do something, public opinion really matters. Public conversation about a broken criminal justice system and what can be done about it is key.
BPR: Do you think bail impacts the rates of incarceration of lower-income people?
NF: Absolutely. Bail plays a huge role in what ultimately happens in someone’s case, as unfortunate as that sounds. Research has found that if someone can’t afford bail and they’re stuck in jail, they’re much more likely to take a guilty claim. Bail is something that certainly has to be addressed. It certainly can’t work to keep poor people behind and other people not.
BPR: What do you think are the most problematic aspects of a private prison system?
NF: What strikes me about private prisons is that [prisons] are the state and government’s responsibility. I think that the government, thirty years ago, increased incarceration to an extent that it was unsustainable for them to afford or to even build prisons fast enough. What they started to do when they reached crisis point was make compromises. Private prisons became a compromise, but the government should ultimately be responsible for the people it puts in the prison system. Finding compromises avoids the problem that laws need to be reversed on the state and federal levels…to put less people in prison.
BPR: What are the first steps towards dismantling the systematic issue of racism in criminal justice?
NF: That’s a big question. [Racism] is something that pervades every single step of the criminal justice system. It’s something we address at every point that we can, but it’s not an easy thing to come up with solutions for, at least on a broader scale. What we try to do is have real conversations about it and help policy-makers, police, prosecutors in particular, and those who run jail and correction facilities to have a better understanding of it. That’s where we try to start. Once they have a better understanding that there is a problem, then we can help find solutions.
BPR: What are your thoughts on corruption in criminal justice prosecution?
NF: More than corruption is the legitimization of bad incentives … What should be considered a success is not necessarily getting as many people behind bars as possible. [The prosecution system] creates an incentive that makes it completely legitimate for a prosecutor to say “Hey I’m going to push this person for a guilty plea,” rather than help them address and fix their issue. That’s the ultimate problem. There is an incentive structure involved in how offices get money and how the federal government gives money out to police and prosecutors and courts. You have to redefine what success is, because it is based off an archaic system where everyone’s guilty and if you just get them to the next step of the system, you’ll be rewarded. That’s not how it should operate, and [at the Brennan Center] we try to promote how the money divvied out within the criminal justice system needs to be redone.