Parallels Between Criminal and Civil Justice

Originally Published June 22, 2015

In arguably one of her most important speeches, Hillary Clinton delivered a scathing critique of the US criminal justice system. More importantly, she complemented that critique with a compelling vision for reform.

Clinton spoke at Columbia University but in the shadow of unrest in Baltimore. She pulled no punches, not that there are many punches to pull – criminal justice reform is hardly a divisive issue. As Radley Balko writes in the Washington Post, the policy debate can usually be summed up as “Republicans passing laws to make Democrats look soft on crime, and Democrats defending themselves by trying to outdo Republicans.”

Everyone wants to reduce crime, and everyone wants to reduce the number of nonviolent offenders in prison. What’s promising about Clinton’s vision is her insistence on reducing mass incarceration in tandem with the “broader inequities” surrounding it:

Without the mass incarceration that we currently practice, millions fewer people would be living in poverty… And it’s not just families trying to stay afloat with one parent behind bars. Of the 600,000 prisoners who re-enter society each year, roughly 60 percent face long-term unemployment…

She criticized the criminal justice system for doing little to rehabilitate mentally ill inmates. “Our prisons and jails,” she said, “are now our mental health institutions.” Her vision emphasizes the role of the community in law enforcement as well as rehabilitation: community policing, community mental health centers, judges and prosecutors who earn the trust of their neighborhoods: “Everyone in every community benefits when there is respect for the law and when everyone in every community is respected by the law.”

To that end, she insisted on body cameras for every police officer. She also proposed that “federal funds for state and local law enforcement [be] used to bolster best practices, rather than to buy weapons of war that have no place on our streets.”

Clinton’s vision falls roughly in line with that of newly-confirmed Attorney General Loretta Lynch. A career prosecutor, Lynch is expected to focus on “improving police morale and finding common ground between law enforcement and minority communities.” She has also voiced support for a bill with bipartisan congressional support that would soften sentencing for nonviolent offenders.

These are good, progressive measures on every front. But they are only half the battle.

As we’ve written before, there’s something missing from pretty much every conversation about our broken criminal justice system: the civil justice system. The United States is one of the only countries that thoroughly separates civil and criminal justice, even though the two are inextricably linked.

At the most basic level, this means that the broken criminal system often results in civil litigation. Meanwhile, civil litigants who cannot afford to defend, say, their housing or employment interests often end up in the criminal courts. The failure of either system sends more cases to the other.

But this is not necessarily a bad thing. One of the most important functions of the civil courts is to provide restitution for those wronged by the criminal courts. If a government wrongfully imprisons you, you cannot imprison it back. You can, however, seek compensation in a civil suit. This is true not just for the wrongfully imprisoned but also for the countless victims of criminal justice gone sour: the wrongfully arrested, beaten, brutalized, and even killed.

Money, of course, does not equal justice. Settlements and damages cannot give people their lives back, but they do punish wrongdoers, deter wrongdoing, and give victims hope for a better future. Unfortunately it is far from easy for the people seeking justice to get it. Even the most straightforward cases take years to wind through the system. Worse still, the proceedings often force victims to relive the worst experiences of their lives – in depositions, cross-examinations, sometimes in the media.

‍Our leaders are absolutely right to push for eased sentencing and better policing. But it is a mistake to forget that criminal reform cannot happen without civil. Everyone deserves a fighting shot at justice, but there are some who simply shouldn’t have to fight.