Go Big or Go Home: Why Bold Reforms Work, and why Little Reforms Don’t Grow up to be Big Reforms
A Cautionary Tale of Super Blooms, Some Trees and the Missing Forest
“We’re sleepwalking into policy because we’re not setting goals.”
-- Joseph Allen, Harvard professor of public health
I heard an interesting exchange the other day, where a politician berated a policy person for never having been elected, and therefore of being unable to understand the reality of political trade-offs. So be it, and so it goes, but I do wish the policy person had been armed with this quote because it really is the right response. Because all too often this horse-trading leaves the body distinct from the mind.
Yet somehow, we retain faith in these collective hallucinations. There are lots of possible ways to sleepwalk into policy, but they all, at some level, are about a belief in magic. The whole process was bollocks and this can’t possibly work, but hey, let’s just do it and be legends. If we just push our broken car down this hill and jump in when it gets rolling, the engine will magically catch and we will ride off into the sunset.
One typical version of the more common and seemingly innocuous branch of the sleepwalking disorder is the idea of seeding the field. If we throw down some seeds, the seeds will take root and germinate and magically turn the barren verdant. Proponents of this approach often cite forest regrowth—after a forest fire, the sunlight that had been banished from the forest floor is unleashed, often first yielding a super bloom of flowers and over time, the regrowth of the forest. Let’s do that, the political folks argue, let’s spread some seeds and wait for the super bloom.
And this isn’t some esoteric concern or academic issue. This is by and large the federal government’s go-to strategy for innovation. New federal initiatives often fund a modest planning period, some implementation, a year or two of trial operations, and then the feds walk away, the politicians confident that the super bloom will attract local funders to sustain and scale the now demonstrated success of the innovation.
The problem with this ‘theory’ is that ignores a key mechanism in the forest fire renewal parable—that the trees grow back. The word ‘back’ is doing a lot of work in that sentence. The forest grows back because it was there before. It is an enormous leap in logic to believe the same virtuous cycle will emerge where there was no forest, or worse, where the environment was actively hostile to a forest.
The alternative is a big effort with a big goal. In March, 2019, I was part of a panel on Capitol Hill along with advocates for better supports for children in poverty. The Child Poverty Action Group brought to the table evidence-based, data-driven programs that—at scale—could together cut child poverty by a lot. But that’s not what we were on the Hill to talk about that day—that day, we talked simply about setting a goal of reducing child poverty by half.
The power of a big goal is captivating. Set the goal first, then set about finding the policy or portfolio of policy’s that get you there.
As it turned out, there was a simple mechanism to achieve that goal that wasn’t on our agenda that March that would do exactly what we hoped. Almost exactly two years later, in March of 2021, Congress passed the $1.9 trillion COVID relief bill which included a dramatic expansion of the child tax credit. According to Columbia University, that one change would reduce child poverty by 44.9% along with a host of other benefits. Instead of a series of difficult authorizations, appropriations, and regulatory guidance along with herds of challenging implementation problems, the goals were met with a swipe of a pen. Notably, the reduction of child poverty by half was no accident—it was the stated goal.
And what it showed was the folly of accepting sleepwalking as a close substitute to big goals and big actions.
A Brief Digression
Sustaining the child tax credit—which will expire at the end of this year—is one key piece of the so-called safety net bill now under consideration in Congress (I don’t really like this moniker, but my power to rename reconciliation bills turns out to be limited). That bill is critical because it unleashes the power of prevention in all kinds of similar big bet kinds of ways—here is my op-ed from this week with the great Denni Fishbein on the value of prevention.
As the classic Frederick Douglas quote says, “it is easier to build strong children than to repair broken men.”
Back on Point
This brings me to what I really want to talk about, which is about the folly of the ‘but the seeds will super bloom into a forest’ mythos, and the missed opportunities in the past to go big. I want to talk about where we gambled on super blooms and ended up with some trees instead of a forest. As we debate the scale of the safety net it is wise to remember these lessons to help us fight our instinct to cut and chip away at our big bets in the hope that super blooms might save us. Or at least push back against advocates of sleepwalking.
Treating Substance Use Disorder through the Criminal Justice System
The best example I can think of a big investment in trees that did not grow into a forest are adult drug treatment courts. Now, I think drug courts were and are a good idea, and I will say more below about how they could be better.
You may say instead, drug courts, I hate drug courts because they criminalize addiction. I hear you, but you should definitely read the rest, because this is a story about sleepwalking into policy and if you have strong feelings about the dangers of criminalizing addiction, you should know the drug court story. Because it is a story about what happens when you are sailing a reach before a following sea, when you are making for the trades on the outside on a downhill run to Papeete, but the wind stops, the sails luff, and you are left drifting on the tide. Because at the end of the day, without drug courts, people entering the adult criminal justice system with substance use disorders are drifting and it is an unfriendly tide, with a strong current pulling in the wrong direction.
Perhaps the most widespread reform of the criminal justice system in the last 30 years took place not on the street, but in the courtroom. Drug courts were created to solve a major problem in the justice system, were widely adopted, then attacked—both by proponents of the status quo but also and most importantly by reformers—and slowly diluted until they lost parts of what made them an important reform. This cycle is both predictable and demoralizing. But there remains a scaffold from which to build and we should draw up some new blueprints.
Drug courts sought to solve three problems, one of which is obvious and two which are not so obvious but potentially more important. The obvious problem, as articulated by Janet Reno, who was the chief prosecutor in Miami-Dade in 1989, was that courtrooms were overwhelmed with drug involved arrestees and nothing was being done to address addiction. Drug courts were created to put recovery in front of prosecution on the court priority list, redefining justice in the process. That is the obvious bit of the reform.
Greg Berman, then president of the Center for Court Innovation, identified a second important reform that was explicit in Janet Reno’s stated motivation for creating a Miami-Dade drug court but somehow was lost in the historical narrative. As he noted at an Urban Institute event in 2010,
Just to give you a snapshot from where I'm from in New York City, over the course of the 1990s, there was a tremendous explosion in case load in the state court system. To take just a snapshot of misdemeanor offenses—misdemeanor offenses in New York City—misdemeanor cases went up 85 percent over the course of the 1990s. Meanwhile, the number of criminal court judges remained basically flat.
That last point—that defendants were added in huge numbers into the criminal justice system but judges were not is rarely referenced. The idea for the first drug court was to remove drug-involved defendants from the usual criminal court proceedings, which would both allow for greater care in those cases and better outcomes for defendants with drug use disorders, and, to unclog the rest of the system giving everyone else a fairer shot at justice. The problem, of course, was that the treatment itself made that goal highly unlikely (which is probably why most observers quickly stopped talking about it). Drug treatment court requires more, and more intensive, case processing so it would have had to have been terribly successful indeed to both focus more energy on specific defendants and to free up resources overall.
The third and most not-so-obvious reform from drug courts was a frontal assault on the adversarial justice system itself. Drug court designers sought to take head on what is arguably the biggest problem with the American judicial system—the vast, sometimes almost limitless resources of the government—competing for verdicts with the poorest people in our society. If winning is the inherent objective of an adversarial system, then outcomes that favor of the needs of the defendants were, and are, unlikely.
The Principles of Therapeutic Jurisprudence
Drug treatment courts sought to change all that by setting aside the adversarial process. Defendants in these courts would agree to enter drug court having admitted their crime and without many due process protections, including the right to counsel and the right of appeal in many instances. In return, their recovery would be prioritized, if they adhered to a rigorous treatment schedule. Go to treatment, don’t relapse, make an honest effort and your charges will be dismissed. Stay clean, and you will be a free and sober citizen with all the opportunities that comes with that status.
Immediately, and inevitably, the forces of the status quo moved to water down the process. Eligibility for drug treatment courts was severely limited. Anyone with a current charge that included a violent act, and often anyone with a prior violent act, was not eligible. Since few people who commit crimes specialize, this excluded huge swaths of the population that could benefit, including most domestic abusers. Given how many programs have been tried to reduce domestic abuse and how little effect most of these programs have, this quiet restriction was a terrible missed opportunity.
Drug courts also excluded anyone with a dual mental health diagnosis by and large, excluding another group in desperate need of grace. These exclusion criteria (and there are more too) meant that drug courts would not accept between 95 and 99 percent of all drug-involved defendants.
And the funding to take drug courts from super bloom to forest never appeared. The federal government funded hundreds of planning grants, implementation grants and initial support for drug courts, but the funds ended after a year or so of operation. Local governments took on the payments for the most part, but at whatever size the drug courts were when the federal spigot dried up. There was no going to scale. Almost no forests were grown. Just some trees dotting the landscape.
How many trees? Because of the limits on participant eligibility the overall reach of drug courts is small. In a 2010 study, my colleagues Avi Bhati, Aaron Chalfin and I estimated that perhaps three percent of those who could benefit from drug courts were admitted to a program. A study by academic scholars in 2013 estimated that less than one percent were reached.
The growth of drug court was not just stunted by traditionalists who fear-mongered Willie Horton scenarios, it was also effectively critiqued by treatment advocates. One critique is that drug courts weren’t really voluntary and people were coerced into participating. A second and more damming critique has emerged over the last decade or so. That critique is simpler—drug use should not be a crime, and, criminalizing recovery is immoral. The court system, they argued, is no place for treatment.
The combination of those arguments has, in many ways, ended the drug court reform business. Drug courts are now part of the status quo, and there is little discussion of expansion in any quarter. The courts are small, the judges who oversee them are often outside of their own judicial mainstream, and their victories are quieter. And as a result, the overall effect of adult drug treatment courts on all three key constituencies—the people who participate as clients, the criminal court case flow, and the business-as-usual adversarial case processing—are modest.
In many ways, this story encapsulates the most likely fate for any super bloom approach to policy reform. The program grows organically, then rapidly with federal government support, then levels off when the baton is handed to local governments. Then the critiques begin, and if they have merit (and sometimes if they don’t) growth is stunted.
In this case, real opportunities were missed. There is a huge opportunity cost to not treating people in the justice system who have substance use disorders with drug court, because there are few positive alternatives. The opportunity to scale back the insanely regressive adversarial system of justice was neutered, and the courts remain as clogged and inhumane as ever. At the end of the day, is there any way to frame the reduction of drug court from a forest to a few trees as a win for society?
Perhaps another opportunity for a big bet will come along, and the philosophy of drug court—therapeutic jurisprudence that is non-adversarial, person-centered, recovery-focused--can be infused throughout the criminal justice system. Maybe. But the whole venture has been a huge, missed opportunity.
Three Chords, a Bridge and the Truth
Buried in this essay are some lines from Southern Cross, a song you know as an old Crosby, Stills, and Nash song written right around the time the earth began to cool. Just like jokes are not funnier when you explain them and songs do not get better when you investigate their meaning. But it’s a metaphor for policy because in the end, just like in love, we half-fund good ideas and in doing so, let good policies fritter away, leaving us sad and drunk in a bar in Avalon on our way to Papeete. In policy, like in love, the way to get over the last one is the next one. But, the only way to keep this one, to have it grow and thrive, and to not move on, is to have a plan.
So we cheated and we lied and we tested
And we never failed to fail
It was the easiest thing to do
A Musical Interlude
I love Song Exploder, in part because of the whole Hrishikesh Hirway vibe, and in part because of the way artists talk about their work and the magical, lush adjectives they use. So grant me a little grace here to do a little Song Exploder bit, a tribute really, so that I may further explore this Southern Cross metaphor I have been toiling about. It’s a good story, and worth a minute,
It’s 1974 and high school sweethearts Lindsey Buckingham and Stevie Nicks are free agents having lost their Buckingham/Nicks record deal and casting about for the next thing. You probably know the story of how they were hanging around Sound City late that fall and Mick Fleetwood happens upon them. But before that, they are busy with music, not just waiting for lightning strikes, and hanging out with the Curtis brothers—Rick and Michael—who are finishing an album with little fanfare. With Lindsey as co-producer and Stevie signing back-up, they cut a song called Seven League Boots. The Curtis brothers, for reasons they no longer recall, leave Seven League Boots off their album and the song languishes undiscovered.
It’s a few years later, 1979, and Stephen Stills has divorced French actress Veronique Sanson and is moping around Europe as recently divorced rock stars get to do. As he wanders the Alps between shows with his engineer, they listen to cuts from old Curtis brothers albums, including Seven League Boots. Stills likes the melody, asks the Curtis brothers for permission to play with it, and makes his way back to LA. From there, he takes his brooding mind onto a masted sailing vessel, on a boat literally bound for the Southern islands. And you know the rest of the story.
And now, as Hrishikesh Hirway would say on Song Exploder, here is Seven League Boots by Rick and Michael Curtis, with backing vocals by Stevie Nicks, in its entirety.