What proportion of young people gets arrested?, or, 'We are the 41%'

There are some false memes in the criminal justice system about which even those who work in the field have serious misconceptions, often fundamentally misunderstanding the reality of the system they work in because of professional myopia.

A great example may be found in the recent writings of former Harris County prosecutor turned defense attorney and blogger, Murray Newman, who has a lengthy post up complaining that people who never have contact with the criminal justice system still get to vote and thus give us elected officials like his nemesis Harris County District Attorney Pat Lykos, etc., etc.; if you read Murray's blog it's all familiar territory, and this post isn't meant to defend or criticize Lykos (or Murray, for that matter). But Grits feels compelled to dispute a central premise around which much of the rhetoric in that essay revolves: Writes Newman, "Let's face it, as a wise Homicide Investigator once told me, we deal with probably less than 5% of the population (if that much). The President, the Governor, or the Legislature can enact laws that affect us all, yet most citizens' involvement with the criminal justice system comes from jury duty."

Following that theme, Murray spends much of the rest of the post discussing the differing perspectives of "the 5%" and "the 95%," playing off of the Occupy Wall Street movement's "We are the 99%" meme. The "95%," in Murray's worldview, are the average citizens who never come into contact with the justice system except for jury duty. Let's leave aside the oddity of the premise that the criminals referenced by Murray's Homicide Investigator friend are more likely to have an informed opinion about who would make a good DA than Republican politicos or people who sit on jury duty. Instead, let's take a closer look at that 95% number.

There's a sense in which it's formally accurate: At any given time, about 4% of adult Texans (1 in 25, or around 3/4 million) are under direct supervision of the justice system, either in prison, jail, on probation, or on parole, according to the most recent data. But more people are charged than convicted, and many more are arrested than charged. So in a broader sense, a lot more people than that 4% have brushes with the justice system, particularly early in life. However, even Grits was surprised to see a recent study published estimating that "between 30.2% and 41.4%" of youth will be arrested before they're 23 years old (excluding arrests for minor traffic violations). That's up from 22% of the population in a cohort studied in the '60s. So it's never been 5%, but today the figure is higher than ever.

In the future, then, will the politics of criminal justice change with generational demographics? Murray's dreamworld where bad guys who break the law are just 5% of the public and "the 95%" need never really think about the justice system was never more than wishful thinking. But for a generation among whom a third or more will face arrest and prosecution, it's an almost absurdist contention.

All this to say, as today's generation of youth ages, a greater number of adults than ever will have been arrested on charges they consider either reasonable or unfair, humiliated or treated respectfully through a jail booking, faced a prosecutor who was either fair, unreasonable or somewhere on the spectrum in between, sought an attorney and found (or been assigned) a good or a bad one, and have memories of the whole experience burned into their souls. Are such folks the system's frequent flyers? No. Do they remember the cold smell of jail, the behavior of police and jailers, the treatment of other inmates, hours waiting in a cell or "on the bench," the anxiety about the strength of friendships or family ties as they waited to be bailed out? Probably, yes. That means that many aspects of the criminal justice system are not, in fact, merely theoretical for a substantial block of voters. It's a disorganized and relatively unconsidered constituency, in political circles, at least, but it's not a small one.

Are such memories front and center when people head to the polls to vote for a new DA? Perhaps not, because that's not how these races are run. Candidates in contested campaigns for judge, DA or Sheriff typically tell people to vote based on fear of some dangerous "other" (killers, sex offenders, drunk drivers, etc.). Candidates from both parties routinely ignore (or like Murray, are in denial about) the common experiences of the justice system by a legion of less serious offenders, so questions about how the average person might want to be treated never come up. The terms of mainstream political debate just won't allow it for fear of being labeled "soft on crime."

It's not inevitable, though, that that will be the case forever. Part of the change brought about by the innocence movement - and cases like the Michael Morton exoneration in Williamson County - has been that DAs and the tuff-on-crime crowd can no longer ignore the fact that the system's biggest errors are now well known to most voters, who can suddenly identify with the possibility such mistakes could happen to them or their loved ones. Similarly, the dynamics of courthouse politics may subtly but significantly shift over the years if a large proportion of today's youth grow up with personal experience as criminal defendants and, in some cases, as much empathy for people caught up in the justice system as respectful awe of prosecutors of police.

Murray's right that a majority of voters in the April GOP primary won't know much about criminal justice beyond the scope of an occasional round of jury duty or the flotsam they see on the nightly news. But he overestimates the extent to which those caught up in the justice system represent a tiny, marginal class. It's not such a small group, these days, just an incoherent one.