BEN2016010D | Rikers Island Mass Incarceration Feature (HLB Summer 2021)

‘What can we do to help create 150 years of change in 10 years?’

Andrew Manuel Crespo and Premal Dharia, leaders of the ambitious new Institute to End Mass Incarceration, take aim at ‘one of the defining civil rights issues of our time’

Credit: Nina Berman/NOOR New York City's Rikers Island jail

When they were public defenders in Washington, D.C., early in their careers, Andrew Manuel Crespo ’08 and Premal Dharia saw the full weight of the criminal legal system bear down time and again on the people they represented.

Navigating that system often left deep scars on their clients. The loss of self-determination and basic liberty routinely upended families’ lives. Frequently, the process itself caused the people they represented to miss work and rent payments, lose jobs, and get evicted from their homes. The psychological impact could last a lifetime.

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In the U.S., roughly 2 million people are behind bars every day, outstripping the incarceration rates of any other country on Earth.

Crespo and Dharia knew that what they saw on a daily basis only scratched the surface of mass incarceration in America, where roughly 2 million people are behind bars every day. The rate of incarceration today is nearly four times higher than it was in the early 1970s, outstripping every other country on Earth. And while incarceration numbers have drifted down over the past decade, the declines would have to continue at the same rate for 150 years before numbers reached even those of the 1970s.

To Crespo and Dharia, however, the crisis goes beyond numbers. They do not want to merely shrink the number of people harmed by the system. They want to help end that harm — by supporting and strengthening communities that are working to radically decarcerate the United States.

“Mass incarceration is a monumental injustice in its own right and also a symptom of much deeper structural injustices in our society,” says Crespo. “It’s a metastatic cancer.”

A Shared Vision

Crespo and Dharia followed different paths in their efforts to create social change, both carrying the lessons learned from the people they represented. Dharia stayed in public defense for nearly 15 years, practicing in Washington, D.C.; in federal court in Baltimore; and before the military commission at Guantánamo Bay. Crespo joined the Harvard faculty in 2015 and became an influential scholar in the field of criminal procedure.

In 2019, Crespo and Dharia were independently exploring the roles public defenders can play in the broader movement to end mass incarceration. Dharia, who has also engaged in civil rights litigation and broader advocacy work, had recently started an organization called Defender Impact Initiative to engage public defenders in support of community organizers and movement coalitions. In that work, she collaborated closely with longtime community organizers, including Pilar Weiss, director of the Community Justice Exchange, which hosts the National Bail Fund Network. “Premal brings a unique depth of experience in public defense to the project of reevaluating and shifting the role of lawyers and litigation in social movements,” Weiss says. “That is a sorely needed project.”

close up a man with a gray suit and white shirt outside on Harvard Law campus

Credit: Tony LuongAndrew Manuel Crespo, faculty director of the new institute

At the same time, Crespo was launching a project with a similar name: a new in-house clinic at the law school called the Impact Defense Initiative, which focused on helping public defenders play a larger systemic role in the fight against mass incarceration. He saw the clinic as a force multiplier and as a central component of a broader research and advocacy institute he hoped to build at the school to tackle mass incarceration head on. In its first two years, the clinic litigated a complex challenge to a federal charging policy that doubled prison terms for hundreds of people in Washington, D.C., almost all of them Black men.

“Professor Crespo and the students worked tirelessly to craft a strategy that went beyond individual cases,” says Carlos Vanegas, a federal public defender who is co-counsel in the clinic’s cases. “Their aim has been to take down a sweeping policy that burdens many hundreds of people with unjust and draconian prison sentences and that results in long-term separation from their families and communities.”

Joining Forces

As their separate projects developed, Crespo and Dharia were regularly in touch. They soon realized that an emerging insight in their parallel work rang true for them on a personal level as well: There is power in the collective. They decided to deepen their impact by joining forces, creating a team with complementary expertise.

“I created Defender Impact Initiative to fill what I saw as a gap in the landscape of the movement to end mass incarceration,” Dharia says. “The insights and roles of public defenders could be activated toward broader change, to support organizers and advocates working in social movements in addition to the representation of individual people within the criminal legal system.” When national discussions about the criminal system’s structural harms gained momentum in the summer and fall of 2020, Crespo and Dharia’s ongoing conversations about their work took on a different shape. “Lots of people have been tackling issues of systemic injustice for a long time, but the recent broader reckoning opens up more paths to potential change,” Dharia says. “Alongside the deep pain, this is, in some ways, a hopeful moment.”

Woman with long brown hair and a red white and beige striped jacket standing outside on sunny day

Credit: Jared SoaresPremal Dharia, the institute’s executive director

They mapped out a plan. With the support of HLS Dean John F. Manning ’85, Crespo moved forward with plans to transform the Impact Defense Initiative into a new research and advocacy center ­— the Institute to End Mass Incarceration. And in February, Dharia brought the strategies and work of Defender Impact Initiative to Harvard Law, teaming up with Crespo to help lead the new institute, where Crespo serves as faculty director and Dharia serves as executive director.

Preparing for a formal launch this summer, Crespo and Dharia have brought together a diverse set of collaborators and advisers to help guide and build the work to come. Reflecting the institute’s driving values, many of the core advisers embedded in its construction and strategy have themselves been directly impacted by the penal system. “The institute has fresh and exciting ideas and strategies to help build collective power from the ground up, and to support that power with new models of lawyering and organizing,” says David Ayala, a formerly incarcerated community organizer who was central to the push to restore voting rights for convicted people in Florida, and who serves on the institute’s advisory board. “I’m excited to be able to help guide and shape this important work,” Ayala says.

Propelling Dramatic Change

The institute’s bold mission is in its name. Working closely with existing community organizations, Crespo and Dharia are determined that it will play a role in radically decarcerating the United States and in dismantling the harmful practices that fuel mass incarceration. “The institute is guided by a firm belief that the way our country deals with harm and approaches punishment is one of the defining civil rights issues of our time,” Crespo says. “We’re not merely studying mass incarceration. We’re on a mission to end it.”

Crespo says the ambition to bring swift and comprehensive change to the American penal system is nothing short of a moonshot: “What can we do to help create 150 years of change in 10 years?” he asks.

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“We’re not merely studying mass incarceration, says Crespo, “We’re on a mission to end it.”

The answer to that question is simultaneously groundbreaking and time-tested. Crespo and Dharia believe that organized and strategic social movements, leveraging broad collective action, can achieve profound social change. Thus the institute will work to build community power, to support organized collective action, and to train and guide lawyers — including public defenders — to support collective community-driven efforts.

To start, Crespo and Dharia have combined their experience and insight as lawyers to identify structural components of the penal system where collective action holds the greatest potential for rapid decarceral change. Their targets include the power imbalances defining the plea-bargaining system, the inherent coercion surrounding police custody in the period after arrest, and the structural impediments stifling the power of juries.

The focus on plea bargaining builds on Crespo’s prior scholarly work and teaching, which emphasize the extent to which plea bargains are the engine of mass incarceration. Ninety-five percent of all criminal convictions arise from guilty pleas, which prosecutors frequently obtain by exploiting sky-high statutory punishments, he says. To avoid these catastrophic sentences, people facing prosecution typically plead guilty in exchange for sentencing discounts. As a result, cases that might otherwise take days to resolve via a trial get pushed frictionlessly through the system in a matter of minutes, with dozens of people incarcerated in a single courtroom in just one hour.

To disrupt this process, the institute will work to implement and support a collective action strategy highlighted nearly a decade ago by civil rights lawyer and New York Times contributor Michelle Alexander, based on an idea shared with her by Susan Burton, a formerly incarcerated organizer: People facing prosecution might demand, collectively, to invoke their right to a trial.

In theory, the deluge of trial requests would overwhelm the system and lead prosecutors to abandon charges against a significant number of people. “Can this work?” asks Crespo. “No one has ever put that idea to the test or fully explored its ramifications. But if it can work, it could be a game-changer.”

A related initiative aims to use collective action and community intervention to eliminate the “black hole” between a person’s initial arrest and first court appearance — a time of intense isolation when coercive police tactics feed into the plea-bargaining process described above. A third major initiative will work to activate the power of the community through juries, reducing systemic barriers to fully empowered jury service in the communities that are most directly impacted by the penal system — communities that have long seen and lived the injustices brought to the surface in 2020.

In all of these initiatives, according to Crespo and Dharia, the institute aims to model a form of advocacy in which organizers and lawyers operate in tandem, each leveraging a distinct set of skills and practices in support of a common overarching mission. Toward that end, they are partnering with community organizers both at Harvard and on the ground. “This project embraces collaboration between community leaders, organizers, lawyers, and the people most directly affected to help build power,” says Marshall Ganz, a senior lecturer at the Harvard Kennedy School and a leading expert on community organizing who serves on the institute’s advisory board. “That power will be necessary to end the harms of our deeply unequal and unjust system of justice.” Fellow board member Dawn Harrington is the executive director of Free Hearts and a leader in the National Council of Incarcerated and Formerly Incarcerated Women and Girls. “I’ve been a grassroots organizer for five years,” Harrington says. “It’s so important for people coming into this space to center the need for meaningful power-building in communities. I am heartened and excited that that’s a core part of the institute’s agenda.”

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In all of its initiatives, the institute aims to model a form of advocacy in which organizers and lawyers operate in tandem.

As for lawyers, Crespo and Dharia see their role as buttressing social movements, not leading or being at the center of them. “It’s not lawyers who are going to save the day,” says Dharia. But they “can bring deep expertise  that can be critical in this particular movement as communities themselves take action based on what they need and want.”

Structured to Succeed

The institute will be built around three interlocking components. Its innovation hub will bring together people with different types of expertise — academics, advocates, activists, people who have been incarcerated or impacted by the system — to share ideas about achieving bold decarceral goals. The organizing and advocacy center will include an in-house legal clinic where students will learn and help develop the organizing-oriented legal practice described above and deploy it toward systemic change. Finally, a research component will study a broad variety of efforts in real time to pinpoint and promote what’s working and reconsider what’s not.

The mix of academic and advocacy elements draws on Crespo and Dharia’s distinctive strengths and their unique career trajectories and relationships — and, they hope, represents a powerful model for creating change. “We think it is possible to commit to taking concrete action in the world while also being self-reflective and analytical about the action we take. We need to be both bold and humble about how we approach all of these problems,” Crespo says.

And the moonshot that Crespo described — dramatically reducing the number of incarcerated people in the country in a decade’s time — is really just the tip of the iceberg. Indeed, their goal is not simply to pursue decarceration, but also to address the structural problems that led to this crisis to begin with. “We want to end mass incarceration in all senses of the phrase, root and branch,” Crespo says.