By Inimai Chettiar, Director, Brennan Center's Justice Program
& Udi Ofer, Deputy National Political Director and Director of Campaign for Smart Justice, ACLU
For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook. But the “tough on crime” attorney general may be in for a surprise. In 2018, it turns out, demagoguery about crime no longer packs a political punch. In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.
This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s. Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes. Ronald Reagan launched a “war on drugs.” George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program. Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year.
Politics driven by fear of crime had direct, destructive social costs. Today, with just under five percent of the world’s population, the U.S. has nearly 25 percent of its prisoners. Black communities bear the brunt, with one in four Black men serving time during their lifetimes.
Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy. Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.
Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime. His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates. This has chilled the artery of many politicians once eager to support reform efforts in Washington.
For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics. But something unexpected happened on the way to the backlash.
Lawmakers in blue and red states alike pressed forward with reforms. In 2017, 19 states passed 57 pieces of bipartisan reform legislation. Louisiana reduced sentences. Connecticut modernized bail. Georgia overhauled probation. Michigan passed an 18-bill package to reduce its prison population.
And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.
Urban politics have been transformed, too. District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia. Justice reform proved a powerful organizing issue among the young and in communities of color.
There’s a reason that candidates who embrace a criminal justice reform platform do well. Ninety-one percent of Americans support criminal justice reform, with two in three Americans (including 65 percent of Trump voters) more likely to vote for candidates who support reducing imprisonment. An even higher percentage support an end to mandatory minimums, and 64 percent of Americans support marijuana legalization (including 51 percent of Republicans).
All of this creates a real political opening for politicians ready to act with just a modicum of courage. If Democrats want to demonstrate care for Black communities, they should campaign on ending mass incarceration. Polls show this is a winning issue for Republicans too. Trump and Sessions lie far out of the mainstream. At the federal level, candidates can support the Sentencing Reform and Corrections Act and the Reverse Mass Incarceration Act. At the state level, they can support ending imprisonment for many crimes, shortening sentences for others, reforming drug laws, turning felonies into misdemeanors, and ending cash bail.
To be sure, the public still worries about crime. After the police protests, conservatives claimed that a “Ferguson effect” was causing police to pull back, leading to a reversal of long-term trends toward greater public safety. But new statistics show that that spike was just that: a temporary twitch upward, with crime headed back down in 2017. And states over the last decade have shown crime and incarceration can be reduced together.
For decades, like death and taxes, tough-on-crime politics seemed as if it would always be with us. Crime scare ads have lost their potent power. Criminal justice reform turns out to be a political winner.
Published on ACLU on January 15, 2018
By Peter Edelman
In the United States, a system of modern peonage – essentially, a government-run loan shark operation – has been going on for years. Beginning in the 1990s, the country adopted a set of criminal justice strategies that punish poor people for their poverty. Right now in America, 10 million people, representing two-thirds of all current and former offenders in the country, owe governments a total of $50bn in accumulated fines, fees and other impositions.
The problem of “high fines and misdemeanors” exists across many parts of the country: throughout much of the south; in states ranging from Washington to Oklahoma to Colorado; and of course in Ferguson, Missouri, where, in the wake of the killing of Michael Brown, revelations about the systematic criminalization of the city’s poor black residents brought these issues to national attention.
As a result, poor people lose their liberty and often lose their jobs, are frequently barred from a host of public benefits, may lose custody of their children, and may even lose their right to vote. Immigrants, even some with green cards, can be subject to deportation. Once incarcerated, impoverished inmates with no access to paid work are often charged for their room and board. Many debtors will carry debts to their deaths, hounded by bill collectors and new prosecutions.
Mass incarceration, which has disproportionately victimized people of color from its beginning in the 1970s, set the scene for this criminalization of poverty. But to understand America’s new impulse to make being poor a crime, one has to follow the trail of tax cuts that began in the Reagan era, which created revenue gaps all over the country.
The anti-tax lobby told voters they would get something for nothing: the state or municipality would tighten its belt a little, it would collect big money from low-level offenders, and everything would be fine.
Deep budget cuts ensued, and the onus of paying for our justice system – from courts to law enforcement agencies and even other arms of government – began to shift to the “users” of the courts, including those least equipped to pay.
Exorbitant fines and fees designed to make up for revenue shortfalls are now a staple throughout most of the country. Meanwhile, white-collar criminals get slaps on the wrist for financial crimes that ruin millions of lives. Though wealthy scofflaws owe a cumulative $450bn in back taxes, fines and fees from the justice system hit lower-income people – especially people of color – the hardest.
“Broken windows” law enforcement policy – the idea that mass arrests for minor offenses promote community order – aided and abetted this new criminalization of poverty, making the police complicit in the victimization of the poor. Community policing turned into community fleecing. Enforcing “quality of life” rules was touted as a way to achieve civic tranquility and prevent more serious crime. What it actually did was fill jails with poor people, especially because those arrested could not pay for bail.
Budget cuts and the new criminalization have inflicted other cruelties as well. Under “chronic nuisance” ordinances created by underfunded police departments, women in some poor communities can be evicted for calling 911 too often to seek protection from domestic abuse.
Public school children, particularly in poor communities of color, are arrested and sent to juvenile and even adult courts for behavior that not long ago was handled with a reprimand. The use of law enforcement both to criminalize homelessness and to drive the homeless entirely out of cities is increasing, as municipalities enact ever more punitive measures due to shortages of funds for housing and other services.
In addition, low-income people are deterred from seeking public benefits by threats of sanctions for made-up allegations of benefits fraud. As elected officials have moved to the right, laws designed to keep people from seeking assistance have grown more common. Budget cuts have also led to the further deterioration of mental health and addiction treatment services, making the police the first responders and jails and prisons the de facto mental hospitals, again with a special impact on minorities and low-income people.
Racism is America’s original sin, and it is present in all of these areas of criminalization, whether through out-and-out discrimination, structural and institutional racism, or implicit bias. Joined together, poverty and racism have created a toxic mixture that mocks our democratic rhetoric of equal opportunity and equal protection under the law.
A movement to fight back is showing signs of developing. Organizers and some public officials are attacking mass incarceration, lawyers are challenging the constitutionality of debtors’ prisons and money bail, judicial leaders are calling for fair fines and fees, policy advocates are seeking repeal of destructive laws, more judges and local officials are applying the law justly, and journalists are covering all of it.
The Obama administration’s Department of Justice stepped into the fray on a number of fronts. Ferguson was a spark that turned isolated instances of activism into a national conversation and produced numerous examples of partnerships between advocates and decision-makers.
Now we must turn all of that into a movement. The ultimate goal, of course, is the end of poverty itself. But as we pursue that goal, we must get rid of the laws and practices that unjustly incarcerate and otherwise damage the lives of millions who can’t fight back. We must fight mass incarceration and criminalization of poverty in every place where they exist, and fight poverty, too.
We must organize – in neighborhoods and communities, in cities and states, and nationally. And we must empower people to advocate for themselves as the most fundamental tool for change.
Published on The Guardian on November 6, 2017
By Hilary O. Shelton and Lauren-Brooke Eisen
The early 1990s were a turbulent time for many cities and towns in America. The national violent crime rate had been steadily ticking up, increasing 40% from 1984 to 1992, as the murder rate climbed 20% between 1984 and 1993, disproportionately impacting communities of color. Congress reacted by passing the 1994 Violent Crime Control and Law Enforcement Act, better known as the “1994 Crime Bill,” which restructured federal grant funding. It inspired states to build more prisons.
The number of people behind bars increased by almost 50% between then and now, from 1.5 million to 2.2 million people. African Americans bared the brunt of that tremendous growth, making up 13% of the U.S. population but 37% of the nation’s prisoners. Meanwhile, crime rates are down. Budgets are tight. Prisons are overcrowded with inmates who are serving time for non-violent crimes. And we are beholden to an often-unjust justice system built on policies past, which highlights and exacerbates racial inequality in America’s criminal justice system. In short, we are paying dearly to waste human lives.
But a new bill introduced Wednesday by Rep. Tony Cárdenas of California aims to reverse that decades-long trend. The Reverse Mass Incarceration Act, which Senators Cory Booker and Richard Blumenthal introduced this summer in the Senate, sends federal funds to states that reduce crime and incarceration together. It is the only solution proposed on Capitol Hill that would help reign in state prison populations (where 87% of the country’s prison population is housed), while reducing vast racial disparities in the system and ensuring hard-earned public safety gains over the past quarter-century are not lost. Senator Blumenthal said on Wednesday, “the federal government can encourage more enlightened and effective action” at the state level with this bill.
For decades, through both the 1994 Crime Bill and other programs, the federal government has sent out grants to states and cities on autopilot to fight the “war on drugs” and to aid other anti-crime, public-safety initiatives. States and cities often seek these additional “bonus” dollars and are willing to modify policy to get them. It’s one reason why almost all the funds ultimately allocated by Congress from the 1994 bill were used by states to build more prisons and lengthen prison sentences.
This new measure is designed to redirect that flow of funding — to upend that incentive. It would authorize $20 billion in incentive funds over 10 years to states that cut their prison population by 7% every three years and keep crime near record lows, or even lower. This can be done either by creating a new grant — or by directing current funds — to support state activities proven to reduce crime and incarceration at once. Lately, some states are already on a path to do this; the bill will encourage and could speed up further progress, promising federal dollars for successful and reform-oriented changes in policy.
But federal sentencing reform alone will not eliminate mass incarceration. The federal government must work with states to drastically cut the number of prisoners behind bars. Under this new act, states would be free to choose their best path to achieving these common goals, building on local expertise rather than just a federal mandate. If fully applied, this would result in a 20% reduction in the prison population nationwide in a decade, a result of local expertise at the state level. Certainly, Republicans and Democrats should be able to get on board with a program that improves public safety while reducing our expensive and inefficient incarceration system.
Not only is this possible, it’s played out across the country. In the last 10 years, 27 states have reduced incarceration and crime together. It’s a politically and geographically diverse group. They include states in the Northeast (New York and New Jersey), the West (California and Colorado) and the South (Mississippi, South Carolina and Texas). Texas alone has closed eight prisons in just six years, while crime rates remain at historic lows. Similarly, under Governor Andrew Cuomo and due to a reduction in the state’s prison population, New York has closed 13 state prisons.
To be sure, local and state reform is key to making a dent in America’s prison population. But this bill would set a tone from the top and directly help states continue already successful efforts. It would dramatically reduce prison populations, lessen the justice system’s disproportionate impact on communities of color and maintain hard-won declines in crime over the last 20 years. Passing this bill would send a message from the federal government that our society is capable of responding to crime in a way that is not only effective, but also humane.
Published on TIME on October 4, 2017