Why you should care
American democracy is only as good as its justice system.
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If you asked which jurisdiction was leading the way in criminal justice reform, the answer might surprise you: Texas. Yes, in the state better known for its execution rate, a motley band of reformers — libertarians against the war on drugs, conservatives sick of government spending and bleeding-heart liberals — all teamed up to reduce incarceration rates and sentencing for nonviolent drug crimes. The results were paying off, to the tune of billions of dollars, and its successes had inspired reformers across the country.
But today, a campaign for federal justice reform — a uniquely bipartisan issue that had quietly been gaining supporters — has hit a roadblock. And ironically enough, it’s because everyone’s paying attention.
Blame the limelight, observers say. The killings of Michael Brown in Ferguson, Missouri, and Eric Garner in New York, and then the assassination of two NYPD officers, have thrust justice reform onto the streets — and under a national microscope. The protests have turned off conservatives, who are now wary of looking untough on crime. Liberals, for their part, are bargaining more aggressively than before. When a negotiating table widens, it’s harder to meet in the middle. “My read at the moment is the Ferguson and Staten Island cases actually make it harder to get something done,” says an official who has pushed for federal justice reform for years.
The upshot: The most we can reasonably expect in the short term is some tweaking of prison and justice policies. The sea change many had hoped for? Back-burnered.
Over the past few years, a union of unlikely bedfellows took up the cause of judicial reform.
Though justice reform didn’t attract many headlines until Ferguson went up in flames last August, much was happening far from the media glare. Over the last decade, states have been rethinking policies that have swelled their prisons (from 200,000 people in 1973 to 1.5 million in 2009), swept up a disproportionate number of racial minority members in the war-on-drugs dragnet and cost a lot of money. The Pew Charitable Trust found that 30 states reduced their prison rates between 2008 and 2013, resulting in a 6 percent drop in the state prison population. “To be honest, it tended to be ideologically noncontroversial, so long as all the stakeholders … realized they all share common ground,” says Derek Cohen, an analyst at the right-of-center Texas Public Policy Foundation. In Texas, he says, the reforms saved the state more than $2 billion.
State efforts trickled up, and over the past few years, a similar union of unlikely bedfellows took up the cause of judicial reform at the national level, too. One Senate odd couple: Kentucky libertarian Rand Paul and New Jersey liberal Cory Booker. Another is veteran Democratic leader Dick Durbin of Illinois and tea party fiscal conservative Mike Lee of Utah.
Still, bipartisanship couldn’t move legislation through a Democratic Senate last year. And while Republicans like Lee and Paul plan another push in 2015, insiders say prospects are even more doubtful in the new Congress. There are two main reasons. One is new Judiciary Committee Chairman Chuck Grassley of Iowa, an old-school Republican who staunchly opposes major changes in sentencing law. The second is Ferguson.
Even longtime justice advocates worry the new surge of activism will result in “knee-jerk reactions,” as Lauren-Brooke Eisen, counsel at the left-leaning Brennan Center for Justice, puts it. Conservatives, meanwhile, do not want to be seen as siding with Ferguson protesters. “We have been reluctant to use that as a news hook,” Sen. Lee’s communications director, Brian Phillips, says of the push for reforms after Ferguson. Lee’s argument to fellow Republicans instead highlights the ways long prison sentences harm families. That will be a hard sell, though we may see smaller-scale reforms focused on shortening sentences for offenders already in jail.
The Obama administration has the power to move on justice reform on its own, as it’s done on policing standards. Obama even highlighted justice reform during his State of the Union address this month. But here, too, major action is unlikely. Officials have already pushed the envelope. In April 2014, the Justice Department expanded clemency for nonviolent prisoners, and the United States Sentencing Commission, a judicial agency, moved to reduce sentences for drug traffickers. Against that backdrop, it’s hard to see Obama taking provocative new steps on justice, particularly given his cautiousness on the Ferguson protests. The new attorney general nominee, Loretta Lynch, isn’t likely to jump feetfirst into such fraught political waters, either.
None of this is to say criminal justice reform is a lost cause. The bipartisan coalitions that cropped up first at the state and then the national level over the years suggest it’s an issue with wide appeal across a kaleidoscope of groups. And as Eisen points out, big new pots of money promised by conservative sugar daddy Charles Koch and his liberal counterpart George Soros in recent months mean the movement will have the financial wherewithal to play the long game. That’s to its benefit, because the landscape after the 2016 elections could look very different than it does now, with a more sympathetic Rand Paul or Jeb Bush presidency, or a Democratic resurgence in Congress and the White House. In the meantime, activists shouldn’t hold their breath.