The Slow March to Reform Just Got Slower

On election night, our burgeoning national consensus on criminal justice reform was smashed to smithereens. Just as a bipartisan coalition of think tanks released a blizzard of new white papers and a bipartisan set of senators worked to achieve a bill to address our ‘over-incarceration’ problem, our new nominee for attorney general, Senator Jeff Sessions worries about an ‘under-incarceration’ one. Standing against 20 years of data (colored by slight blips in the inner cities), Sessions, like President-Elect Trump, worries about a national crime wave. While the hope for national reform dims (and hopes for an active and vigorous Civil Rights department extinguishes), activists must take heart in a string of electoral victories for local criminal justice reform measures and reform-minded candidates.

The National Picture
Trump has called police officers the “most mistreated people in the country,” and vowed to help officers “regain control of this crime wave and killing wave.”He has suggested that stop and frisk be instituted nation-wide. ThinkProgress has compiled an exhaustive list of Trump’s views over the years on criminal justice issues. For instance, Trump’s first foray into politics involved buying full page ads in New York City newspapers calling for the death penalty for five black teenagers wrongly accused of murdering and raping a white woman (the whole incident became a cultural flashpoint on race and criminality in the US). Trump once wrote that “criminals are often returned to society because of forgiving judges… We need to hold judges more accountable, and the best way to make that happen is to elect them.” Trump doubled down on his 1980’s tough-on-crime anachronisms when he touted his “law and order” candidacy and complained that our cities are “chaos” and “out of control.” He has called private prisons “an excellent thing” and he is a “big supporter” of the death penalty.

While Trump is ambivalent about the legalization of marijuana, offering that it is “probably” something that should be left to the states, his pick for Attorney General, Jeff Sessions, is one of the few Senators who still whole-heartedly embraces the war-on-drugs paradigm. Sessions’ vows to crack down on marijuana threaten to throw a wrench into the plans of states that already have already legalized it (Colorado, Washington, Alaska, Washington, and DC), along with those who just voted to legalize it (California, Nevada, and Massachusetts).  Marijuana is still illegal under Federal law, and as a “highly fungible item,” the Supreme Court has ruled that the power to regulate or outright ban controlled substances resides squarely with the Federal government. Marijuana is classified as a schedule I drug by the DEA, and CBD oil, the compound associated with marijuana’s medicinal, not hallucinogenic effects and considered the least controversial of all of the Cannabinoid compounds was itself declared a Schedule I drug this winter. While the DEA remains institutionally opposed to marijuana legalization, and as long as the Controlled Substances Act remains current law, experimentation in the states will largely depend on the Fed’s top cop, the Attorney General, looking the other way. Sessions does not appear eager to play along.

Trump’s election leaves a vast swath of future federal policy in doubt. For one, Obama’s program to shorten the sentences of drug offenders is in jeopardy. Deferred Action for early Childhood Arrivals, granting young non-residents who came to the US as children relief from deportation and legal work visas, is similarly in doubt. Less conspicuous are the programs not slated to be created or cancelled, but the laws that will be left unenforced. Trump’s criminal justice legacy will be felt in the Civil Rights Division investigations not pursued in the wake of a police shooting, for instance, in addition to any specific policy changes. It is hard to imagine a Sessions Justice Department opening investigations into the Baltimore and Chicago police departments, for example, and looking to rectify patterns of excessive force.

While opportunity for reform at the national level wanes, activists should take heart knowing that only 1/7 of the incarcerated are in the federal system. State and local laws, not federal policy, have the largest cumulative effect on the 2.5 million incarcerated.  At the local level, election night was a mixed bag, but most a mostly positive one.

In one high profile coup, Arizona’s Maricopa County rejected its longtime Sheriff –cum-celebrity Joe Arpaio, famous for his “tent cities” and his dictates that prisoners wear “pink” underwear as a shaming tactic. Arpaio, an early Trump supporter, lost while under a federal indictment for obstruction of justice, refusing to comply with a court order that he cease racial-profiling in his traffic stops. Reform-oriented district attorneys did well across the country, too. In Tampa, Houston, Denver, and more, candidates offering “less jail time” won.

However, popular enthusiasm for more ‘compassionate’ measures has not eroded support for the death penalty in many states. As the Marshall Project outlined, California rejected a ban on the death penalty, and also opted for a measure that would speed up executions. Nebraska voters choose to reinstate the death penalty after their legislators banned it (over a Governor’s veto no less!). Oklahoma ‘firmed’ up its commitment to the death penalty by passing a measure declaring that the death penalty is not “cruel and unusual.”

A smattering of other states had bills with other disappointing results, but still more embraced reform measures. Colorado voters rejected an amendment that would have abolished slavery for those in prison (Colorado, like the Federal government, abolishes slavery except has punishment for a crime). As the Marshall project summarizes, California opted for an early release program, Oklahoma took steps to lower its incarceration rate, and New Mexico banned continued incarceration for those unable to post bond.

Trump’s election has forced a natural, and perhaps needed, shift in progressive focus from the national to local level, where the channels of policy making may remain open to them. While our political narratives are becoming more nationally focused than ever, the laws most likely to be felt by the average citizen are local ones. State and local jails and prisons account for six seventh of the incarcerated, and progressives can make the most progress, if piecemeal, at the local level. That is itself encouraging.
However, localities are not insulated from disappointing national results, and it often takes federal force of power to coerce localities into following their civil rights obligations. Most cities, towns, and counties across the country are not as receptive to reform as the well-organized bastions of relative progressivism that voted for reforms (urban areas like Denver, Tampa, and Houston) and Donald Trump and Jeff Sessions appear unwilling prod them.