The Surprising People on Both Sides of the Aisle Flirting With Prison Reform - and Then Backtracking

Reform of the criminal justice system has surfaced as a major issue in the presidential race. 2015 had seen the emergence of an unlikely coalition for reform, uniting conservatives and liberals, driven by widespread concern about the increase in the prison population and by street protests against the failure of prosecutors to address the targeting of blacks by police. Right-wing financier Charles Koch helped pull together a coalition of advocacy groups from both left and right to fight the “over-criminalization of America,” while George Soros’ left-leaning Open Society Foundations provided major financial support for justice reform efforts. In 2015, even Ted Cruz called for eliminating “draconian mandatory minimum sentences.”

Fueled by the new bipartisan consensus, in many states reforms have been instituted over the last few years. These have included reduced mandatory sentences, more sentencing flexibility for judges, increasing drug and mental illness treatment alternatives to prison, reducing the post-release impact of imprisonment by banning employers from asking about prison histories, providing body cams for police, supporting community policing, and improving police training. At the federal level, a bipartisan Sentencing Reform and Corrections Act is now before Congress, though for the moment it is falling prey to election year policies.

Who would have expected that it would be the impolitic comments of former President Bill Clinton to Black Lives Matter protesters that would turn criminal justice reform into a front-page issue? Campaigning for his wife in Philadelphia, Bill Clinton defended his 1994 crime bill, insisting that it had led to huge drops in crime rates, including drops in crimes that disproportionately affect the black community.

Hillary Clinton herself has apologized for her support of the crime bill. Many aspects of the bill were “a mistake,” she says, adding, “It’s time to end the era of mass incarceration.” Bernie Sanders, who voted for Bill Clinton’s crime bill—though he insists it was because it included the Violence Against Women Act—has also regularly stated his concerns with mass incarceration.

Predictably, the Republican candidates have been less sympathetic to reform. In October 2015, Ted Cruz reversed course, warning his fellow senators against voting “to release violent criminals from prison prior to the expiration of their sentence.” As for Donald Trump, he believes the real victims are the police, who, he insists, “have been treated horribly.”

At a deeper level, both the complaints of Black Lives Matter about Bill Clinton’s crime bill and his impassioned defense of it miss the point. Neither the rise in incarceration nor the drop in crime rates since the mid-'90s can be attributed to the bill. The rate of incarceration, mainly of black men, rose at more than twice the rate in the two decades before the passage of Clinton’s crime bill as in the decades after. Crime rates, which had also risen rapidly, began to drop before the passage of the crime bill. One large study of the reasons for the decline in crime since the early 1990s, agreeing with many others, concluded that “the growth in incarceration played only a minor role, and now has a negligible impact.”

Almost the entire increase in prison population and the disproportionate incarceration of black Americans was not due to increases in the crime rate. Rather, from the early 1970s on, state and federal laws were passed that disproportionately targeted crimes committed by blacks. Persons arrested for a felony became far more likely to be sentenced to prison, convicted felons were given much longer sentences, and blacks were systematically treated more harshly than whites at every stage of the criminal justice process, from arrest to plea bargaining to conviction to sentencing. These changes did not occur in a vacuum. The rise in incarceration and its disproportionate impact on blacks reflected a shift away from direct efforts to solve poverty and racial inequities—the social conditions that give rise to crime—and toward a program of direct social control.

Recall that despite Kumbaya-ized memories of the eloquence and bravery of Dr. King, the 1960s and early '70s were tumultuous times, characterized by sit-ins, urban riots, confrontational demands for “community control,” campus unrest, the emergence of militant feminist, gay, and environmentalist movements, and, in 1970, the greatest strike wave since 1946. The unrest created widespread anxiety among large numbers of white Americans who found it easier to be angry at poor people and nonwhites than at the system that sustained inequality.

But how could the unrest be controlled? By the early 70s, the social safety net was unraveling, the Johnson administration’s concerted, if flawed, attack on poverty had been taken off the table, and Nixon’s “Southern strategy” signaled an abandonment of active governmental actions to end segregation and discrimination. The criminal justice system stepped in as a mechanism for controlling public spaces as well as for preventing or punishing crime. The drive for “law and order,” President Nixon’s “war on drugs,” New York Governor Nelson Rockefeller’s draconian drug laws, and state gubernatorial candidates’ demands to build more prisons all were racially coded ways of getting tough with unruly blacks, Latinos and poor people. The criminal justice system became, in the words of Harvard sociologist Devah Pager, “the only effective institution that could bring order and manage urban communities.”

On the streets, police in many cities adopted the broken window theory of policing, aggressively focusing on minor offenses and misdemeanor arrests. Racially targeted stop-and-frisk programs in the absence of any real suspicion of wrongdoing, arrests for offenses such as dancing on subway trains, standing on the sidewalk with a group or playing basketball in the park after hours, demands by police to show an ID when standing outside one’s own apartment, and breaking up groups of young men accused of loitering all in effect criminalized everyday activity. Research has failed to provide convincing evidence that these police practices reduced serious crime, but for poor urban communities, the policies created an atmosphere of fear.

Whatever the conscious motives and whatever the legitimate role of the justice system in combating crime, the police and the courts became a system of direct control of the black population, and more broadly, of poor people. Today almost half of all black men under the age of 23 have been arrested at least once, and one-third of all black men can expect to be imprisoned at some point during their lives. Regardless of race or ethnicity, it is the less educated and less stably employed who are most likely to be caught up in the prison net. High school dropouts, black and white alike, are five times more likely to be incarcerated than those with a high school degree.

Sentencing reform and body cameras won’t solve the problem. As Hillary Clinton put it: “When we talk about criminal justice reform, and ending the era of mass incarceration, we also have to talk about jobs, education, housing and other ways of helping communities.” As Bernie Sanders added, “We can either educate or electrocute... We can create meaningful jobs, rebuilding our society, or we can build more jails.”