Crime And Political Punishment: Why Harsh Realities Must Change

Our criminal justice system is in dire straits.  Too many people are incarcerated for too many nonviolent offenses and it costs too much money. 

Most of those who land behind bars are men of color from the lower rungs of the socioeconomic ladder.  Yet, despite the compelling need for change in this area, criminal justice reform traditionally rests even lower on the policy agendas of elected officials.  Why do our politicians, even purported progressives, tend to shy away from the issue? 

Consider the political variables.  For one thing, a good number of the people who would benefit most directly from changes to mass incarceration rates and racial bias in the process have felony records that, in many states, bar them from exercising their right to vote. For another, those most indirectly affected – families of inmates and residents of low-income neighborhoods that bear the brunt of our nation’s controversial policing policies – are often poor.  In other words, they are not writing campaign checks or otherwise serving as bundlers for rich contributors in their social circles.  If they are, then they may receive individualized attention from pols. (See Exhibit A: President Bill Clinton’s pardon of convicted financier Marc Rich, the spouse of Denise Rich, a fabled Democratic Party fundraiser).

Finally, the average voter identifies more with being a victim of crime than being charged with one.  Tough on crime rhetoric resonates—and anything short of that message runs the risk of appearing soft on crime.  Many a candidate’s campaign has gone off the rails because of an ill-conceived criminal justice decision or, even more, a high-profile crime that occurred during their watch.  Massachusetts Governor Mike Dukakis’s seemingly inexorable rise to the Presidency in 1988 foundered due to a series of blunders.  But perhaps more than any political misstep (that tank, oh goodness), his campaign collapsed due to a political attack ad launched by his Republican opponent, George H.W. Bush.  The ad highlighted the saga of Willie Horton, a Massachusetts inmate who was released on furlough during Dukakis’s tenure and went on to commit violent crimes.

The shadow of Willie Horton has loomed large over politicians for the past quarter century.  Barack Obama’s election in 2008 ushered in an era of hope for lefties keen on criminal justice reform.  Eager progressives fantasized that President Obama would not only fulfill his campaign promise to close the military prison at Guantanamo Bay, but also end over-criminalization, spearhead abandonment of the federal death penalty, and begin to address racial bias in policing. This segment of the electorate was left largely disappointed during the President’s first term and much of his second: Guantanamo Bay remained open, drone strikes increased, and the Department of Justice continued to pursue the death penalty in certain cases.

But are the times changing when it comes to the politics of criminal justice reform? As we approach the first anniversary of the shooting death of unarmed African-American teenager Michael Brown by a white police officer in Ferguson, Missouri, it seems as if the political calculus has indeed shifted. Public anger at unfair policing, prosecutorial, and correctional policies has reached a fever pitch.  And President Obama is responding.  Just this week he commuted the sentences of 46 nonviolent federal prisoners, gave a rousing speech on the topic of criminal justice at an NAACP convention, and became the first sitting president to visit a federal prison.

President Obama is a lame duck in the waning days of his tenure, to be sure, but does his growing boldness on the issue of criminal justice portend anything for other politicians? It might.  The Nebraska legislature, one of the most conservative in the nation, recently abolished the death penalty.  Many states are discussing whether to roll back so-called “mandatory minimum sentencing.”  And throughout the Northeast, political leaders are devising innovative, and generally non-punitive, measures to grapple with the soaring rate of opioid addiction.

The changing politics of criminal justice reform may be a passing fancy.  But I don’t think so.  The winds are blowing too hard in the direction of a more humane, more equitable, and more cost-effective approach to the forever vexing problem of how to treat criminal activity in our country.