What seemed inevitable when President Obama visited a federal prison and everyone from Charles Koch to Newt Gingrich was onboard is now a pipe dream. But could that be a good thing?
"Well, first of all, Secretary Clinton doesn't want to use a couple of words, and that's law and order. And we need law and order. If we don't have it, we're not going to have a country."
So bellowed Donald Trump at the first presidential debate in New York on Monday, words that might be dismissed as a throwback to the rhetoric of the Nixon years if they didn't seem to have the current Congress living in fear. Back in February, when a remarkably bipartisan campaign for criminal justice reform in America began sinking into the rancorous reality of Washington—and Trump was on the ascent—I wrote a preemptive autopsy under the headline, "Justice Reform, RIP?"
At this point, I think we can safely dispense with the question mark. The body is cold. But could that actually be a good thing?
Serious reform—like reducing the country's bloated prison population, shifting emphasis from retribution to rehabilitation, and generally making the system deliver on its broken promise to keep us safe—has enjoyed a formidable array of advocates for years now. President Obama yearned to make justice reform part of his legacy and lobbied for it in public and in private. House Speaker Paul Ryan professed support, as a way of slowing the community-destroying cycle of poverty, crime and punishment—not to mention a way of demonstrating that his party is not indifferent to the blacks and Latinos disproportionately ensnared by the current system.
Reform has been backed by a strange-bedfellows alliance of conservative and progressive interest groups and many big-city law enforcement officials. And polls have found strong public support for reducing or even eliminating mandatory-minimum sentences and letting prisoners earn time off their incarceration by participating in programs like job training and drug counseling. It seemed—at least until recently—that two decades of declining crime rates had taken some of the power out of law-and-order fear-mongering and paved the way for a critical look at the system America built on the foundation of those "couple of words."
Conservatives began asking why their loathing for unaccountable big government had exempted the institutions of law enforcement. Progressives began to think of mass incarceration as a civil rights issue.
By the beginning of 2014, criminal justice reform was turning mainstream.
The high-water mark of reform aspirations was captured in a bill sponsored by Representatives Jim Sensenbrenner, a Wisconsin Republican with impeccable law-and-order credentials, and Bobby Scott, a progressive Virginia Democrat. As the congressional session gave way to campaign season, however, reform proponents had to dial down their expectations. The ambitious Sensenbrenner-Scott plan was sidetracked in favor of a much narrower approach, the work of Charles Grassley, chairman of the Senate Judiciary Committee, and Congressman Bob Goodlatte, his House counterpart, that would reduce mandatory-minimum sentences for low-level drug offenders, but not do much else. (For a comparison of the two bills, see here.) And even that anemic measure died without a Senate vote.
How did reforms with such broad support and mainstream appeal fall so short? My former New York Times colleague Carl Hulse, a master of congressional pathologies, called it a "stunning display of dysfunction." Congressional process, after all, favors defense over offense. For example, a single senator can prevent a bill from getting expedited attention and consign it to a bureaucratic slow boat. Even though Speaker Ryan was reportedly willing to hold a vote in the House, Mitch McConnell, the Senate majority leader, refused to make room on the calendar for any issue that aroused dissent within his caucus.
And even the most modest proposals ran into fierce opposition from a handful of hawks such as Republican senators Tom Cotton, of Arkansas, and Jeff Sessions, of Alabama. (Cotton has indicated he might even block a bill intended to protect juveniles from being locked up with adults, and to ban incarceration for "status offenses" like skipping school or breaking curfew. That measure is so non-controversial it passed the House 382–29 last week.)
But this is more than a story of congressional dysfunction. It's the story of an election year that will test whether the politics of fear—commingled with racism—still hold America in thrall.
The 2016 election cycle has not produced many profiles in courage. Witness Ted Cruz, the Texas Republican who as recently as last year told a press conference that mandatory-minimum laws have condemned "far too many young men, and in particular far too many African American young men." Touting his home state's record of reduced incarceration and falling crime rates. Cruz declared, "We need to recognize that young people make mistakes, and we should not live in a world of Les Miserables."
When he embarked on his campaign for the White House, running as the meanest man in the field, Cruz swiveled, denouncing a bill that was considerably less generous to offenders than the one he supported back then. "We know to an absolute certainty that an unfortunately high percentage of those offenders will go and commit subsequent crimes," he said last October. He added, "Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents."
Proponents of reform, pointing to the experience of red states like Texas, Georgia, Mississippi, and Utah that have directed low-level offenders to treatment programs rather than prison, say it has become safer for politicians to be "smart on crime" rather than merely tough. But the soft-on-crime smear is still a staple in election campaigns for judgeships and prosecutor positions, and many members of Congress remain wary of the subject. "Members are now at a point where they know they're not going to get hurt if they are pro-reform—but they don't see much upside," says Kevin Ring, vice president of Families Against Mandatory Minimums, a group that advocates giving judges greater discretion in sentencing of nonviolent offenders.
Surges of murder in several major cities, televised protests against police behavior, and fear-mongering by some presidential candidates have contributed to a perception—never mind the facts—that crime is rising ominously. Donald Trump turned his nominating convention into a festival of law-and-order, and then went on to endorse the largely discredited practice of stop and frisk and other forms of profiling, which he did again on Monday. Needless to say, reformers look upon the possibility of a Trump presidency with dread.
Some reform advocates will tell you that their cause was dead the day last year when President Obama, after giving Congress boundless opportunity to take the initiative, threw himself into the fight. Many Republicans would rather stick pencils in their eyes than pass something Obama could claim as a victory.
And the lethal heroin epidemic—which has hit especially hard in white suburbs, also known as swing-voter territory—may have made politicians wary of legislation that would mainly benefit drug offenders. In the politics of crime and punishment, white lives still seem to matter more.
Of course, in contrast to earlier heroin binges that hit black neighborhoods most heavily, this one is being billed more as a health problem than a crime one. But only up to a point: Prosecutors in several states have begun charging drug dealers with second-degree murder or similarly grave crimes when their customers overdose.
A final factor in reform's demise was the campaign itself. While many of us marveled at a spectacular mustering of bipartisan solidarity at a time of political polarization and paralysis—the Koch brothers! Newt Gingrich!—the alliance was not nearly as muscular as it seemed. Unlike a single-purpose political force (think the NRA) coalitions are composed of groups with multiple priorities. Charles Koch, the libertarian-conservative CEO of Koch Industries, is a major supporter of the criminal justice reform alliance, and his company has also been—presumably for business reasons—one of the largest contributors to the campaign coffers of Senator Tom Cotton, who apparently believes the only problem with mass incarceration is that it's not massive enough.
Likewise, the Faith and Freedom Coalition, another player in the bipartisan justice reform effort, seems more focused on mobilizing opposition to same-sex marriage and abortion than to alleviating mass incarceration. Americans for Tax Reform, the vociferous small-government lobby, endorses reform as an antidote to wasteful spending, but it's not clear that particular cause has captivated the rank and file. "Some of the leaders, especially on the right, were out front of their members," said Pat Nolan, a conservative reform activist.
On the progressive side, there was a longing for a victory—any victory. The most visible pro-reform alliance, the US Justice Action Network, was quick to celebrate every sympathetic op-ed as a triumph. The group promptly hailed the watered-down Grassley bill while other advocates held their noses and bit their tongues in hopes the measure could still be improved. "Optimistic is one word," said one dissenting reform advocate of that hope. "Naïve is another."
"Everybody was so desperate to get something done this year," concedes Holly Harris, executive director of the Action Network. She still describes the Grassley measure as "a good bill," but says the network will start its next push in 2017 with more comprehensive measures in mind.
For some proponents of justice reform, the failure this year was actually a relief. They escaped what some had feared as the worst outcome: Congress enacting a diluted reform bill, declaring "Mission Accomplished," and dropping the subject for years. Another consolation is the prospect that Hillary Clinton, who has vowed to "reform our criminal justice system from end to end," wins, gets a somewhat less conservative Congress, and keeps her promise.
Nolan, who has been pushing prison reforms for more than two decades, points out that alternatives to incarceration continue to spread at the state level. And, he notes, signature federal changes—measures like the Prison Rape Elimination Act of 2003 and the Second Chance Act of 2007—took years of persistence.
"You've got to be in this for the long haul," Nolan said.
Bill Keller is editor-in-chief of the Marshall Project and former executive editor of the New York Times. Follow him on Twitter.