No Cheap Compromise on Criminal Justice Reform

At TNR today, Stephen Lurie offers a wake-up call to progressives who are perhaps a mite too excited about the great conservative turnaround on criminal justice issues. Yes, it’s a great thing that an increasing number of Republican thinkers and pols are interested in sentencing reform and related issues. But progressives have conceded crucial ground by going along with the idea that it’s all about saving money.

The consensus may be bipartisan, but it’s not ideologically balanced. The language advocates use to describe the problems at hand and the nature of their proposed policy solutions demonstrate that this moment is far more concerned with mass than incarceration. Despite reports of meeting in the middle, we’re witnessing a liberal acquiescence: Nearly everything is phrased in conservative terms—cutting costs, saving funds, and minimizing the size of the system.

Consider the eerily compatible messaging of the leading conservative, liberal, and centrist advocacy groups. Right on Crime—the conservative organization credited with kick starting and leading the current reform movement and efforts in many states—centers their drive for reform in fiscal responsibility. The organization’s short statement of principles is replete with concern for “cost”, “taxpayers” and “spending” (but not “fairness,” “equality,” or “rights”).

Meanwhile, the ACLU’s new Campaign to End Mass Incarceration (Smart Justice, Fair Justice) starts by putting “needlessly throwing away too many lives” on par with “wasting trillions of taxpayer dollars.” The Campaign’s listed priorities all deal with the size of the justice system and cost cutting in some form. Even the call to “Invest in Better Systems” emphasizes that “services like drug treatment and affordable housing cost less and can have a better record of success” than the criminal justice system. Likewise, the Coalition for Public Safety, a new bipartisan umbrella campaign sponsored by the likes of Koch Industries and the MacArthur Foundation and led by groups from the Center for American Progress to Americans for Tax Reform, emphasizes their “comprehensive” approach but also tends to be minimalist in practice. Presenting the Coalition’s case on PBS recently, Mark Holden (senior vice president of Koch Industries) and Neera Tanden (president of the Center for American Progress) laid out the vision. “What we’re talking about are [sic] more non-violent offenders, first-time offenders, low-level offenders not getting really long sentences.” Tanden expressed concern with how the “criminal justice system is actually increasing poverty.” That poverty itself also contributes to a cycle of poverty, crime, and incarceration—or that only focusing on specific offenders will hardly address the size of the problem—remained unsaid.

Does it really matter how criminal justice reform is “framed,” particularly if the main resistance is coming from old-school conservatives like Senate Judiciary Committee chairman Chuck Grassley who cannot be sold on anything other than efficiency grounds? Perhaps it does. Lurie offers a rather chilling precedent in the “deinstitutionalization” drive of the 1970s, focused on a population with mental illnesses:

As the United States pursued a policy of deinstitutionalization in the 1970s, people with mental illness did not just disappear: They were just indirectly fed into the growing prison system. One recent report “estimated that in 2012, more than 350,000 people with serious mental illness were housed in prisons and jails, while a tenth as many—about 35,000—were in state mental hospitals.” If diversion of non-violent offenders (or other alternatives to incarceration) succeeds in keeping the mentally ill out of jail, what will become of them? Professor Bernard Harcourt wonders whether “there is a significant risk that [decarceration] will simply produce new populations for other institutions, whether homeless shelters, inpatient treatment facilities, or other locked-down facilities.” The extant mental health facilities are “in tatters,” too. The leaders of current reform won’t discuss the costs of creating robust state mental health programs—or many replacement social services. Releasing and diverting people convicted of crimes will be cost-free, but ensuring their well being out of prison will almost definitely require “new authorized spending.”

And that’s something that even the most aggressive proponents of sentencing reform, like Rand Paul, are just not interested in.

But according to Lurie, you know who is interested in a more comprehensive approach to criminal justice reform? That latecomer to the criminal justice reform party (supposedly because of her husband’s complicity in the status quo ante):

Luckily, there is at least one dissenter, and she happens to be the front-runner for the presidency. Hillary Clinton’s first major policy speech a few weeks ago—and her contribution to the Brennan volume—offered a radically comprehensive approach to criminal justice reform and demonstrated a rare understanding of the difficulty of reform. Though many are skeptical of her back and forth on the issue, she hardly jumped on the politically palatable bandwagon. She denounced “siloed” discussions of criminal justice that ignore “what’s needed to provide economic opportunity,” acknowledged areas that will require resources, like legal aid, and pointed to lessons learned from deinstitutionalization. Most importantly, she insisted on the difficulty of substantive change that isn’t just about cutting mass. “In a time when we’re afflicted by short-termism, we’re not looking over the horizon for the investments that we need to make in our fellow citizens,” she said. “Progress will not be easy, despite the emerging bipartisan consensus for certain reforms.” Clinton is saying that, in the long run, freedom won’t come for free.

Let’s hope we hear more on this subject from HRC, because she may well become the actual tie-breaker and deal-maker in any successful push for federal action on criminal justice reform.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.