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January 8, 2015

19th-century system is a better model for criminal justice today, CRSP lecturer says

Frederick Thieman, former U.S. Attorney for the Western District of Pennsylvania.

Frederick Thieman, former U.S. Attorney for the Western District of Pennsylvania.

Today’s criminal justice system is so broken that “I’m not sure we can break it any more,” Frederick Thieman, president of the local Buhl Foundation, told an audience at the Center for Race and Social Problems last month.

The 21st-century criminal justice system should be more like the 19th-century justice system, with a clear separation of powers between lawmakers and judges, and between police, prosecutors and the courts, he said.

Thieman is a Pitt law graduate and former U.S. Attorney for the Western District of Pennsylvania. His Dec. 1 lecture was the year’s final Buchanan Ingersoll & Rooney PC talk for the School of Social Work.

Law faculty member David Harris introduced Thieman, noting that he is “one of the leading lawyers in our state” and chaired Pittsburgh’s recent police chief selection committee.

Thieman was appointed U.S. Attorney in August 1993, the very month that U.S. crime peaked. In particular the homicide rate was “off the charts,” Thieman said. While Pittsburgh is the safest major metropolitan area in the U.S. today, he noted, and the murder rate is down, it is relatively high compared to other violent crimes.

Even in the 1990s, he said, “it wasn’t just gun violence that demonstrated something was wrong” with U.S. society. The rates of suicide and unmarried pregnancies also increased dramatically in the 1990s, demonstrating “a weakening of the social fabric.”

Today, the United States has the highest incarceration rate in the world. One of every 100 Americans is in jail, including one of every 53 people in their 20s, one of every 30 men aged 20-34 and one of every nine black men in that age category. Thieman noted the U.S. has 5 percent of the world’s population and 25 percent of its prisoners. One of every 28 children in the U.S. has a parent behind bars. And each prisoner costs the country $30,000-40,000 a year.

“There’s no dispute about these kinds of facts,” he said. “And we should not be accepting them … This is the social and civil rights issue of our time.”


“You can’t really view the criminal justice system in the United States in a complete vacuum,” Thieman maintained. He noted that three decades ago we decided that mass institutionalization for mental health problems did not provide the right treatment for such problems. Today, with 30 percent of prison inmates estimated to have mental illness, we are asking prisons to serve as mental health care facilities instead.

“The criminal justice system itself is not doing particularly well,” Thieman said, “because we’ve forced it to do things it was not particularly suited to do.”

He blames politicians who have pledged to be “tough on crime,” passing legislation with mandatory minimum sentences for drugs and other infractions, plus laws such as life without parole and “three strikes, you’re out.” These hamstring judges’ discretionary sentencing decisions and empower prosecutors to force plea bargains on innocent people potentially facing long jail terms.

The country’s high rate of imprisonment likely is responsible for only 10- 25 percent of the drop in crime since the 1990s, he said. He credits other factors over the last decades: a general improvement in the economy; an aging population; “a huge increase in private security” including alarm systems in cars and houses; people carrying less cash thanks to debit cards, “and significant improvements in policing” — especially an emphasis on community policing.

Still, he said, we must get smarter about how our police, courts and prisons function.

First, he said, marijuana needs to be decriminalized to the equivalent of a speeding ticket. We can’t afford to jail all drug offenders, he said, and under the Affordable Care Act “access to drug treatment might increase.”

Elimination of laws that keep people in jail until they are old also would make sense, he said. “Old people don’t commit crimes,” he said, and criminals, no matter when they first are arrested, “age out of crime as they get older” — at an average age of 35. Since 1991, the number of people age 45 or older in U.S. jails has increased by more than one-third. Thieman said we are keeping people in jail when they are least prone to crime but when their health care becomes more expensive to provide.

Studies by Daniel Nagin of Carnegie Mellon University have shown that “imprisonment is a deterrence but the length of the prison sentence does not deter.” Since the risk of getting caught is a deterrent while longer sentences fail to prevent crimes, we ought to be putting less money into prisons, more into policing, Thieman said.

In addition, we ought to concentrate more on rehabilitation, not punishment. He cited Allegheny County’s Jail Collaborative as a national model. This program conducts risk assessments of new prisoners and determines who is at greatest risk of recidivism. Those inmates receive job training, GED help, anger management classes and other aid, while their families receive help on the outside, especially in preparing for the inmate’s reintegration into society upon release.

The program has dropped recidivism among former county inmates by 53 percent in the last two years and saves the county $7 for every $1 spent, Thieman said.


As a former prosecutor, Thieman is particularly adamant about what he calls the “anti-judge movement” in the United States, which has placed too much of the sentencing parameters in the hands of legislators and prosecutors. It’s the equivalent of putting developers in charge of city zoning laws, he said. He called for a strengthened separation of powers between the judicial and legislative branches of government. “We need to recognize that jails are a breeding ground for crime,” he added, and consequently we should reduce the amount of jail time to which those arrested are subject before trial.

Thieman cited studies by the Laura and John Arnold Foundation that showed those in jail just two-three days upon arrest have a 39 percent chance of rearrest in the following two years; that jumps to a 57 percent chance of rearrest for those in jail six-seven days prearrest, and continues to increase for those held longer.

Thieman also recommends sentinel policing — creating a police presence, particularly in areas with a high risk for crime — as a deterrent over policing focused mostly on apprehension. Police departments across the country are finding different, effective ways to determine where to undertake such “hot-spot deployments.” Richmond deploys officers where the city’s gun-shot detectors previously have shown the highest gun activity, while Texas targets spots where landlords have the greatest number of housing code violations. Police also use social media and surveillance cameras to find out where to patrol next. Laws that prohibit pawnshops from buying from recent inmates reduce crime, as does redeveloping neighborhood housing in the toughest spots, such as East Liberty Development, Inc., undertakes here, Thieman said.


“Life occurs in the midst of tension,” Thieman concluded. In nature, that can occur at the treetops or on the surface of a body of water. For people, that tension is focused mainly in our cities. “It’s what causes the vibrancy of cities, but the police need to be in the middle of that,” he said. “They can no longer be in their cars.” Community policing “is also more necessary than it’s ever been, as seen in Ferguson …,” he added, speaking a week after a grand jury declined to prosecute a Ferguson, Missouri, police officer for killing an unarmed black teen during a confrontation. “That episode could have been avoided by a police officer who understood that community better.”

However, he said, if we focus on one incident in Ferguson “rather than the societal issues that caused that, we’re in trouble.”

Thieman recommended that 21st-century police forces follow the 19th-century policing precepts of Sir Robert Peel, who introduced a paid police force and community policing to England in 1821:

  • “The purpose of police officers is to prevent crime.”
  • “You don’t get cooperation if there isn’t trust.”
  • “Police are not judge and jury.”
  • “The test of a good police force is the absence of crime in the community.”

—Marty Levine

Filed under: Feature,Volume 47 Issue 9