Criminal justice and laboratories of democracy  

A century ago, Justice Louis Brandeis wrote that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

That concept remains true today, and in no context more so than our justice systems. There are 18,000 different police forces across the country. Each with its own policies, practices, and culture. State prisons are filled with a collective population six times greater than that of federal facilities. Given the localized nature of criminal justice and law enforcement, the movement for reform will have to build from the states that choose to serve as laboratories of democracy.

We, as the attorneys general of the State of New Jersey and the District of Columbia, have sought to make our respective jurisdictions such sites of innovation across multiple aspects of criminal law. After extensive research, pilot programs, working groups, and listening sessions over the past few years, we have identified four initiatives — measures that can ultimately help restore community trust in law enforcement — that we believe are worth replicating in other states and localities.

First, police departments should adopt modern use-of-force policies. In December 2020, New Jersey implemented the first update to the state’s use-of-force policy in the last 20 years. The new policy bans all forms of physical force, except as a last resort and only after the officer attempts to de-escalate the situation. It directs officers to identify signs of mental illness, so they can more appropriately respond to individuals who do not present a threat to others. It prohibits officers from firing weapons at moving vehicles or engaging in high-speed car chases, except under narrowly limited circumstances. And, in a rule that may have saved George Floyd’s life in Minneapolis, New Jersey’s policy establishes a “duty to intervene” that requires all officers — regardless of rank, title, or seniority — to intervene if they see an officer use excessive force. Other local police departments, including DC’s Metropolitan Police Department, have incorporated many of these concepts into their policies. When combined with effective accountability systems, they reduce unnecessary force without compromising officer safety.

Second, prosecutors should look for opportunities to divert individuals, where appropriate, from the justice system — especially young people. Beginning in 2016, Attorney General Racine’s office became the first prosecutor’s office to build its own in-house restorative justice program for juveniles. Trained facilitators hold restorative justice conferences between youth who committed a crime, victims, and their respective supporters after careful preparation with all parties. These dialogues allow resolution of conflicts through a focus on repairing harm to victims. Early data shows that youth who have gone through DC’s restorative justice program are less likely to re-offend compared to those prosecuted in the traditional manner, and victims report high rates of satisfaction with the process.

Third, protocols should be established that demand accountability and transparency from law enforcement. Police officers submit detailed information about every use of force in New Jersey within 24 hours of the incident, and data about those incidents are shared with the public in an online portal. Every use of force resulting in death or the death of a civilian while in custody is investigated by an independent prosecutor and always presented to a grand jury for a charging decision, with any body-worn camera footage promptly released to the public.

Fourth, community engagement is a necessary component of the response to gun violence. DC’s Cure the Streets program hires “violence interrupters” who use their credibility, relationships, and influence within targeted neighborhoods to resolve conflicts, both before violence erupts and to prevent retaliation. Outreach workers meet with individuals with a high risk for violence to implement specific risk-reduction plans and to connect them with needed services, such as housing, counseling, and employment assistance. Criminal prosecution alone will not reduce shootings in the long term — it must be coupled with a public-health, community-based approach.

None of these programs is a panacea for all the flaws of our criminal legal system. But they are a start. These initiatives each began with an idea, and with a willingness to try something new. New Jersey built its use-of-force revision from distilling best practices from around the country, and soliciting over a thousand comments through an online public comment portal. And DC built its Cure the Streets program after reviewing extensive research from around the world on epidemiology and the importance of incorporating public health approaches to reduce violence.

Imagine what could be accomplished by 50 states and thousands of municipalities undertaking similar experiments, breaking from conventional wisdom. We hope other states join this effort to think creatively and thoughtfully about how we can improve our justice system.

Our federal government is a limited one. Localized law enforcement can be a strength. But is up to us to keep pushing forward — thinking differently, sharing ideas, building trust. It’s a constant work in progress.

Gurbir S. Grewal is New Jersey’s attorney general and Karl Racine is the District of Columbia’s attorney general.