Sunday, August 3, 2014

A pragmatist's guide to criminal justice reform

"Years of intensive study — and decades of professional experience — have shown that we will never be able to prosecute and incarcerate our way to becoming a safer nation."
That is what Attorney General Eric Holder said in a speech this week to the National Association of Criminal Defense Lawyers.

There is a movement underway to finally walk back the failed "war and drugs" and "tough on crime" initiatives that have caused so much havoc, ended so many lives and cost our country dearly. Its interesting to me that this movement is getting so little attention. Perhaps that's because it doesn't fit very well into our current obsession with how polarized our politics are these days. People on both the right and the left are joining this movement - perhaps for very different reasons. But regardless of motivations, most of them agree with what AG Holder said.

The Obama administration has launched three major initiatives in this area. The first was A Drug Policy for the 21st Century. The plan lays out four evidence-based strategies:
  1. Prevent drug use through education
  2. Expand access to treatment 
  3. Reform our criminal justice system by keeping non-violent drug offenders out of prison
  4. Support people in recovery
Echoing the quote from AG Holder above, the report on this initiative states:
While law enforcement will always play a vital role in protecting our communities from drug-related crime and violence, we simply cannot incarcerate our way out of the drug problem. Put simply, an enforcement-centric “war on drugs” approach to drug policy is counterproductive, inefficient, and costly.
Secondly, in order to challenge the "tough on crime" mantra that fueled so many of these failed policies, AG Holder initiated a Smart on Crime approach. It contains five principles:
  1. Prioritize prosecutions to focus on the most serious cases
  2. Reform sentencing to eliminate unfair disparities and reduce overburdened prisons
  3. Pursue alternatives to incarceration for low-level nonviolent crimes
  4. Improve reentry to curb repeat offenses and re-victimization
  5. "Surge" resources to violence prevention and protecting most vulnerable populations 
It was at the announcement of this initiative that AG Holder issued a memo to federal prosecutors instructing them to charge non-violent drug offenders in such a way that they would avoid triggering mandatory minimum sentences (another "executive action" based on prosecutorial discretion that hasn't gotten much attention).

Finally, this April the Obama administration announced its Clemency Project 2014. We haven't heard much about that one lately. But I suspect that we are in the stage in which petitions are being prepared and/or reviewed. At some point in the next few months we are likely to begin hearing announcements about the granting of clemency to prisoners who qualify.

On the other side of the isle, the web site Right on Crime provides a clearinghouse for all the conservative initiatives that are currently underway - mostly at the state level. As I've mentioned before, states like Mississippi, South Carolina and Texas are undertaking major reforms to their criminal justice systems. At that site you'll find names like Grover Norquist, Mark Levin and Jeb Bush joining the bandwagon for reform.

For a bi-partisan and international approach to much of this, check out the signatories to Breaking the Taboo - an initiative focused on ending the war on drugs. You'll find that people like Lech Walesa, George Schultz, Noam Chomsky and President Jimmy Carter have signed on.

I see that some of my friends who are Obama supporters have taken to criticizing Sen. Cory Booker for teaming up with Sen. Rand Paul on a bill promoting reform. I don't support Rand Paul and wouldn't vote for him for dog-catcher - much less president. But when he supports a bill that allows teenagers and ex-offenders to have their records cleared of past offenses for low-level crimes, I'm ready to team up on that one! I think this is exactly what Bernice Johnson Reagon was talking about when she said: order to take the next step we’ve got to do it with some folk we don’t care too much about. And we got to vomit over that for a little while. We must just keep going.
So yes, I'll vomit a bit over agreeing with libertarian Rand Paul (and all the conservatives who are joining this movement) and then get on with the business of reforming our criminal justice system. That's what pragmatists do.


  1. Why are people getting upset with Senator Booker working with Senator Paul? I thought this was politics. If you stick with it long enough you'll learn to love it. There are a million different things going on that give Booker an advantage. He's reaching across the isle and can sell himself as a bridge builder. He might be able to get a few Republicans to go with Paul on this issue. There's the death hug you talked about a while back where Paul loses a little street cred for hanging out with liberals. If Booker doesn't run for President, he gets a higher profile as a Senator to get more favorable legislation passed. Having a bipartisan bill helps him out should he try 2016. He can freely talk about the issue and make our worthless out of touch pundits look stupid in public. His primary opponents have no choice but to follow his lead on the issue. As a bonus, it helps in dragging the GOP toward normalcy. If they choose to stick with stupid, they move closer to alienation.


    1. I'm old enough to remember when Paul Wellstone worked with Pete Domenici to pass legislation for mental health treatment. Teddy Kennedy was the master at doing this kind of thing. People need to brush up on their history. This is how things get done.