Criminal Justice Reform: Still an Orphan Issue?

Sarah Sibley


America is the “land of the free,” yet even though we represent only 5 percent of the worlds population, we are responsible for over 20 percent of the world’s incarcerated population. America’s prisons and jails house over 2.3 million, a number that has increased over 500% since the 1970s. The American criminal justice system is an international anomaly, and runs counter to international norms. By some estimates, more men and women are under criminal justice system in the United States than were imprisoned in the era of the Gulag Archipelago. Underlying all of this is a political system that has not just sanctioned locking unusual numbers of people up, but reveled in it. While the past few years have marked an inflection point in the fight for reform, the underlying political incentives that make our incarcerated among our most vulnerable groups have not changed.

Incarceration is the publically legitimated method of suspending a citizen’s otherwise legally protected rights. The incarcerated not only lose their physical freedom, even upon release, many lose the right to vote, are banned from certain sectors of work, and may even owe money to the Court system. The legitimacy of this system hinges on key protections that often fail to materialize in practice. For instance, instead of getting a “fair hearing” from a jury of their peers, over 90% of men and women have never had a trial at all, and are in jail as a result of the plea process. We assume that justice is blind, but while blacks and whites use drugs at the same rate, blacks are 10 times more likely to be incarcerated than whites are. We believed that we had abandoned physical punishments, but inmates face staggering risk of sexual and physical assault in prison. The result is a prison system incongruent with its public image.

Most reform advocates do not believe that those that commit crimes should not be punished; instead, reformers worry that systematic abuses will be ignored, and even encouraged, by our political system. In a political environment renown for its Willie-Horton campaign spots and perpetual competition between candidates to be “tough on crime,” Republicans and Democrats alike silently collaborate on what has amounted to a one-way ratchet of ever-accumulating “tough on crime” policies.

Guard tower at Folsom Prison. Photo credit: Vince/Flickr

The issue of mass incarceration, and not simply “crime,” has only recently entered the public consciousness, and public opinion is beginning to shift. In 2010, Michelle Alexander introduced the issue into popular dialogue with her meticulously researched book “The New Jim Crow” in which she traced the construction of black criminality as yet another form of legally sanctioned discrimination. The Black Lives Matter gave the issue key media attention, President Obama was the first President to visit a federal prison, and Democratic candidates for office are now expected to come up with some proposals for criminal justice reform.

While taking up the plight of prisoners is no longer a political third rail, criminal justice reform advocates have reason to be wary of motives from members of both parties. Reformers can celebrate that Democrats are adopting versions of criminal justice reform as a standard talking point and key plank in the pursuit of racial justice, but Democrats are still loth to be seen as champions for those labeled murders, rapists, and pedophiles (in contrast to the much beloved “drug offender,” trope). As a result, Democrats pour energy into reforming sentencing for drug offences, and have mainly given lip service to important systemic abuses stemming from the overuse of solitary confinement, the perverse business model of the private prison system.

An alliance of fiscal conservatives and evangelical Christians has caused some Republicans to embrace aspects of criminal justice reform, too. Some view mass-incarceration as another example of bloated government that is too expensive or find it philosophically offensive. Many Christians within the party view arbitrarily long and punitive sentences as incompatible with Christian values of compassion and forgiveness.

The apparent conservative embrace of the incarcerated has created strange-bed fellows: American’s for Prosperity, the main organization operated by the Koch Network, and the Center for American Progress, a key progressive think tank, sponsored a bi-partisan criminal justice reform bill in 2015 (the merits of which, Center for American Progress later disputed). In last year’s Congress, Democratic Senator Cory Booker and Republican Senator Rand Paul introduced the REDEEM Act, which would reduce mandatory minimum sentences for non-violent offenders in federal prison. Reformers can rejoice that politicians are beginning to chip away at the system, or despair that the political will for progress will collapse once the most politically neutral group (non-violent offenders) have benefited from reform.

Most mainstream politicians, from Rand Paul to Barack Obama, have acknowledged we have an over incarceration problem; that is itself good news. However, energy had predictably been focused on the group of least political resistance— sentencing reform for drug offenders and other non-violent felons. Much needs to be done to from parole reform, to transition reform, the abolition of private prisons, bans on the routine use of solitary confinement, prosecutorial reform, protection of prisoners on sexual assault, routine access to medical care in prison, prison labor reform, and more. Underscoring all of this is the belief that those deprived of the means to ensure their own safety require a special protection, and that a robust liberal democracy most can only measure it health by the strength of the rights of the most politically unpopular.

Throughout the rest of the year, I will be highlighting needs of prisoners that are often not illuminated in the over-incarceration narrative. Beyond national-level partisan breakdowns, I will explore the actors involved at the state and local level, and the different strains of activists involved.