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November 25, 2020

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

November 25, 2020 at 10:39 AM | Permalink

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