Criminal justice reformers and the scholarly literature that guides their work have paid too little attention to a tactic that constitutes "the shared foundation of some of the present moment's most-discussed criminal legal reform proposals," a Queens, N.Y., public defender argues in a new paper that gives the tactic a name and serves as a roadmap to the successful deployment of the tactic.
The author of the study in the N.Y.U. Review of Law & Social Change, Ethan Lowens, writes that "resource attacks" have great potential to "reduce the footprint of the criminal legal system by "creating an imbalance between the resources available to it and the resources it needs to continue status quo operations."
Resource attacks are indirect attacks on the system as opposed to reform measures that explicitly abolish or restrict certain practices outright. The paper cites two types of resources attacks: those that strip law enforcement, prosecutors, courts, and corrections of resources, forcing them to scale back, and those that flood a system with new work, requiring greater resources.
"Forced into a resource crunch, the theory goes," Lowens writes, "institutions such as the police, prosecutors, and criminal courts will triage and scale back. There is substantial evidence that resource attacks can, and have, meaningfully reduced incarceration, misdemeanor prosecutions, and executions."
Though such attacks, he writes, "can deliver tremendous impact quickly and at low political cost," they can also backfire by prodding governments to beef up resources.
"Resource attacks are blunt instruments, and they ought to be wielded carefully: both for the sake of their proponents, so that they affect the policies they intend for them to affect, and for society at large, so that
dangerous unintended consequences may be avoided," Lowens writes.
The example that Lowens examines in the greatest depth is a January 2020 revisions to New York's discovery law, which placed greater burdens on prosecutors to share discovery with defense lawyers sooner. The law, which law enforcement officials have decried as unworkable, has led to much higher rates of dismissals.
The paper details the tactic's advantages and disadvantages, offering advocates a playbook for navigating this terrain to achieve their goals (and, presumably, warning opponents of what they are up against).
Lowens concludes, "It is my hope that this article starts a fruitful academic conversation: defining a category that has long existed without its own identity, drawing connections among interventions whose similarities had gone undetected, and highlighting the features of these interventions and the contexts in which they were applied that affected their outcomes."
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