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May 31, 2016

Highlighting just some of the ways that "Democratic Leadership Is Missing In Action on Mass Incarceration"

Election_donkey3The quoted portion of this post's title comes from this new commentary at The Nation authored by Inimai Chettiar and Ames Grawert. The piece carries the subheading "Sentencing reform will be a compromise between moderate and conservative Republicans, unless Democrats finally come to the table," and here are extended excerpts:

Even though it now looks like Americans will be deprived the drama of a contested Republican convention, the gathering in Cleveland could hold at least one surprise.  The Republicans are set to vote on an RNC resolution to reduce mass incarceration.  The measure asks for “reforms for nonviolent offenders at the state and federal level” and urges “state legislators and Congress to…provide substance abuse treatment to addicts, emphasize work and education, and implement policies that cut costs while obtaining better outcomes.”

Finally, Democrats may say, Republicans have woken up to mass incarceration as a 21st-century civil-rights struggle, joining what has for years been a progressive fight.  Not so fast. If the Republican Party makes criminal justice reform a priority, they’ll be the first major party to do so, ever.  Democrats need to catch up. Adding ending mass incarceration to their own platform would mark a significant step, boldly breaking with their past politics.

So what have the Democrats said about criminal justice?  Recent Democratic platforms haven’t merely been silent; they have actually called for policies creating more imprisonment, and then applauded the result.  Mentions of progressive alternatives are hard to find.

In 1992, Democrats supported alternatives to incarceration, such as “community service and boot camps for first-time offenders.” But four years later the platform went in the opposite direction. It praised mandatory “three-strikes-you’re-out” laws, truth-in-sentencing provisions that limited earned early release, and “$8 billion in new funding to help states build new prison cells.”  At the turn of the century, the party still championed “tougher punishments” as a way to fix “an overburdened justice system that lets thugs off easy,” and applauded federal funding for “new prison cells” as a major success story (a clear nod to the 1994 Crime Bill, which paid states to increase imprisonment).

More recently, in 2008 and 2012, the DNC approved language supporting “local prison-to-work programs” aimed at “making citizens safer and saving the taxpayers money,” and noting the importance of “fight[ing] inequalities in our criminal justice system.” But neither platform made any mention of sentencing reform, or reducing the number of criminal laws, even as the US incarceration rate topped the world and some states reversed course on their “tough-on-crime” policies.

This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.

Yet Democrats still lag behind. Today’s movement to end mass incarceration has largely been led by Republicans. If the federal Sentencing Reform and Corrections Act passes Congress, advocates will have Republican Senators Mike Lee (Utah) and John Cornyn (Texas) to thank for courting support for the bill and hammering out compromises with the party’s most conservative members. At the state level, Republican Governors Rick Perry in Texas and Nathan Deal in Georgia fought for and signed laws that led to sharp reductions in the prison population. In Ohio, Governor John Kasich championed and signed legislation in 2011 to expand the use of treatment in lieu of prison.

In announcing the Republican National Committee resolution to end mass incarceration, RNC member Tom Mechler claimed that “Republicans are the ones that have taken the lead on this.” That’s no idle boast — he’s right. So where are the Democrats?

A few Democrats have stepped up to champion the cause, such as Senators Dick Durbin, Corey Booker, and Patrick Leahy. But the senior party leadership — Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz — have largely been mum. Other influential party voices, including Elizabeth Warren and Chuck Schumer, have done the same. To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” And some may believe that stoutly maintaining a belief in “law and order” will secure votes.

But times have changed. Now Democrats can point to Republicans such as Lee, Cornyn, Perry, and Kasich. Even law enforcement supports reform. These conservative voices now give Democrats cover to come out strongly on the issue. And, in the wake of a national protests to reform policing, Clinton and Sanders have energized parts of Democratic electorate — African-American communities and white liberals alike — on the issue. The consensus to reduce unnecessary imprisonment has arrived. But we will never see true reform until Democrats provide a solid left flank, so that compromise lands at the center, instead of to the right.....

Criminal justice reform should be a simple step for a party that believes in progress, equality, and inclusion. It was the Democrats who fought for civil rights in the last century. If the Democrats do not raise their voice, history will record that it was the Republicans who led the civil-rights struggle in this one.

Though I am pleased to see this piece calling out failings of Democratic Party leaders like Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz, this commentary still strikes me as many days too late and many dollars short. First and foremost, where is the needed criticisms of the Clintons and the Obamas, who are and seem likely to remain for some time the four most important Democratic leaders? Regular readers know I lay particular blame on the Clintons not only for consistently moving to the right on criminal justice issues for crass (and racialized) political benefits in the 1990s, but particularly for not being involved in helping to swinging the pendulum back when mass incarceration became an obvious problem in the following decade and Justice Reinvestment movements could have used an extra boost from the mainstream left. But I also blame the Obamas: the Prez (and lawyer and constitutiuonal scholar) certaintly could have and should have invested more time, energy and political capital on an array of "low-hanging" federal sentencing reform opportunities during his first Term; the First Lady (also a lawyer) perhaps could have and should have incorporated discussion of criminal justice reform into her advocacy for healthy families, service members and their families and higher education.

Second, as especially critical right now, this piece (and many others) ought to be aggressively attacking Prez Obama and other Democrats for being resistent to the federal mens rea reform that Republicans want to see included in sentencing reform efforts. I continue to be both annoyed and deeply disappointed that an issue like mens rea reform, which should be a cause championed by true liberals, has become a critical impediment to getting a sound and needed federal sentencing reform bill through Congress. I have long suspected and feared that sentencing reform would not get done this year absent Prez Obama and other Democrats being willing to work toward sound and needed mens rea reform, and yet it does not appear any real efforts are being made by anyone on the D side of the aisle.

And do not get me started on the failure of federal Democratic Leadership to see the extraordinary opportunities that state-level marijuana reforms has created in recent years for remaking the modern federal war-on-drugs narrative.  As long time readers may know, I consider effective federal and state marijuana reforms to be a critically important front in the battle against mass incarceration, and one that should have even more long-term potential and impact than modest federal sentencing reforms discussed in Congress.  But, short-sighted and fixed in their own dated views of political realities, establishment Democrats have now an impressively long record of mistakes and missed opportunities in this arena.  Sigh.

May 31, 2016 at 11:37 AM | Permalink


"To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” That's the sticking point and the explanation for Democratic inaction. Democrats perceive they will always be blamed whenever there's a Willie Horton type case. Like Nixon going to China, the Republicans will have to carry the ball by themselves on this one.

Posted by: Michael R. Levine | May 31, 2016 12:45:23 PM


Yes, that us true up to a point. In fact, I have made similar statements to yours in the past. But there is a difference between expecting Republicans to carry the ball and outright foot-dragging when they DO carry the ball. I agree with Doug that when it comes to mens rea reform the Democratic leadership is engaging in foot-dragging. Yes, there are some legitimate concerns about the context and scope of that reform but as I has also insisted in the past there is a middle ground on that issue, in fact, the Venn diagram where liberal and conservatives don't agree is tiny.

So enough of this about Republicans needing to carry the ball. They ARE carrying the ball. It is the Dems who refuse to play along.

Posted by: Daniel | May 31, 2016 1:33:53 PM

Moreover, Michael and Daniel, there have been hundreds of modern "Willie Horton" cases since the 1988 campaign and VERY rarely have these cases been used effectively as political fodder against a politician if that politician has been consistently and effectively highlighing the injustices and inefficiencies of modern mass incarceration. (Notably here is that Bill Otis has been trying to turn Wendell Callahan into a modern-day Willie Horton, and very few are taking up that cause (in part because so many GOP folks are talking about reform in this space.)

In 1988, the Willie Horton add mattered because crime was way up and Dems looked soft on an array of fronts. But it is now 2016, and Dems now just look unprincipled here (and elsewhere), and we even get D leaders like Obama who should know better talking about defendants' rights as "technicalities" or like Hillary who cannot figure out how to develop a smarter set of talking points on criminal justice reform than the tripe she had delivered to date. And that is one big reason so many are now "feeling the Bern."

Posted by: Doug B. | May 31, 2016 2:16:03 PM

If the article is supposed to be informative how about this part:

This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.

But, apparently Clinton just has 'tripe.' Is the professor selectively finding things to target Democrats with here or what?

The article also calls out "the senior party leadership" while praising Dick Durbin and Pat Leahy. Come on. They ARE members of the leadership! Elizabeth Warren is called out. Her focus is more economic reform. There are many problems to address. I think she has done her part in her area. Eric Holder and Obama also has spoke out in support of reform. At some point, yeah, "Democrats" have. Republicans control Congress though. They are in the driving seat. Especially with some Republicans speaking out against reform, focusing on, e.g., Dems concerned about mens rea rules for which they have "some legitimate concerns," seems a bit selective to me as well.

Posted by: Joe | May 31, 2016 2:36:39 PM

More importantly criticizing the Democrats ignores how Congress operates. The Democrats will almost certainly vote for cloture on any sentencing reform bill that gets to the floor of the Senate (at least in enough numbers to matter, a small minority might not). Whether a bill gets to the floor in either house, however, depends upon the Republican leadership which will not do so unless enough Republicans support the bill -- especially in the House. The Republicans do not want to see a floor debate (on any issue, much less sentencing reform) in which the Republican Party is split down the middle and the bill depends on Democratic votes to pass.

Because, in today's Congress, the first test for a bill is its support within the majority party, Sentencing Reform is currently an issue (like every other issue) that depends first upon compromise within the Republican Party, with the caveat that if that compromise is too one-sided then the Democrats would have a problem with the bill.

Posted by: tmm | May 31, 2016 3:03:26 PM

We must put "mass incarceration" reform into perspective. Currently there are 2.3 million criminals in state/federal prison/jail. Of those 2.3 million, 230,000 or so are in federal prison. So, if every federal prison is released, there would still be 2,000,000+ criminals in jail. Of course, even those who believe in prison reform agree that not all of the 230,000 federal prisoners should be released, but even at best, that's a 10% decrease in the prison population.

The days of the states looking to the feds to set the example may have passed by. If a REAL and MEANINGFUL dent in the prison population is going to take place, it must come from the states, not from a Congress that is refusing to earn their money.

Posted by: Kelly | May 31, 2016 3:47:54 PM


Again, that is true up to a point but it ignores how political rhetoric shapes the climate in which the political process happens. The Dems could drop their opposition to mens rea reform, promise to work something acceptable out, and move on to other issues. Instead, what they did is create a stalking horse out of corporate executives rampaging through fragile wetlands and escaping responsibility via mens rea. Dems don't believe that will happen any more than I do but they want to create political mileage in front of the interest groups who support them. The problem with this stalking horse is that it allows those in the Republican party who don't like mens rea reform--because it will reduce the number of people they can lock up--an easy out by laying the blame on Democratic foot dragging.

So one can make the argument that the Dems aren't truly foot dragging, they are just putting on a political show. I'd respond that this political show isn't creating an environment that produces healthy political debate. If the problem is truly in the Republican party then the best things the Dems can do is get out of the way, clear off all the smoke, and let the public see how things really are...rather than confusing matters with preposterous FUD.

Posted by: Daniel | May 31, 2016 5:36:16 PM

Democratic party in general is a boat anchor. You not only hVe to come up with good bills, but you have to get them passed in spite of the fact, knowing that they will vote almost all Republican sponsored bills down.

in general, both sides need to be horse whipped, then soaked in salt water.

Then see who wants to work together to get a common bill passed.

Maybe, just maybe these guys and girls can get a budget Nd stick to it. Naw, too much to happen.

Durbin is a very good guy, along with some others mentioned. Harry Reid and Nancy Pelosi need to get a life and retire. Dead beats.

Posted by: MidWestGuy | Jun 1, 2016 12:51:03 AM

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