This election cycle, reducing prison populations and slashing corrections budgets have become part of the essential mantra for most presidential candidates. As Marc Mauer, executive director of the Sentencing Project, put it, "The threat of someone waging a 'tough on crime' campaign as their calling card is ... very much diminished from what we might have seen 20 years ago."
Among the horses in the Republican stable, only Donald Trump appears to be holding the fort on "lock 'em up and throw away the key." Ted Cruz co-sponsored the Smarter Sentencing Act, designed to reduce penalties in drug cases; Marco Rubio has admitted the United States has a problem of "overreaching criminal laws and overstretched prison resources"; and Jeb Bush signed on with Newt Gingrich's Right on Crime organization, a conservative advocacy group that pushes for lower prison populations and reduced corrections spending. And Chris Christie garnered high-level media attention in November with his reform message, delivering an almost tearful soliloquy about a colleague who became addicted to painkillers. Candidate Christie used the emotional moment to stress the need to treat people with substance abuse issues via a medical rather than a carceral model.
While Cruz and company are newcomers to critiquing the "tough on crime" gospel, two candidates do have a criminal legal reform profile that predates the current campaign: Bernie Sanders and Rand Paul. As far back as 1991, Sanders stood on the floor of Congress and argued against a proposed Violent Crime Prevention Act by bemoaning the fact that the United States had a higher incarceration rate than any industrialized nation. In that same speech, he demanded Congress address the "root causes of crime" and reverse the "disproportionate punishment of Black people."
"Politicians have been forced to address mass incarceration because of the unrelenting organizing at all levels."
However, while Sanders' progressive pronouncements are considerable, his 1991 passion has not always held sway. In reality, his voting record on criminal legal matters has been mixed. Most notably, he voted in favor of Bill Clinton's mammoth 1994 omnibus crime bill, arguably the single most important piece of legislation in advancing mass incarceration. The act allocated $9.8 billion for prison building and $8.8 billion for upgrading police, while banning college scholarships for people in prison and implementing a three-strikes policy at the federal level. Still, even with his support for the omnibus bill, Sanders remains the campaigner with the best record of opposing mass incarceration.
By comparison, Rand Paul's serious criminal legal interventions are miniscule, stemming back only as far as 2013, when he condemned the war on drugs as a form of "Jim Crow" (using the phrase coined by Michelle Alexander) and joined with Cruz and Sen. Cory Booker (D-New Jersey) in forwarding the Smarter Sentencing Act. Paul has also backed other reform legislation like the Justice Safety Valve Act, which reduces mandatory minimums, and the Redeem Act, intended to remove post-incarceration obstacles for those with felony convictions. Neither of these has yet made it to the congressional floor for a vote.
Then there is Hillary Clinton. The former first lady has a long history on criminal legal issues, though hardly one of reform. She has faced a unique challenge: distancing herself from deep involvement in her husband's efforts to prove himself tougher on crime than the Republicans. Hillary Clinton stood staunchly behind the omnibus legislation in 1994, proclaiming that: "We need more police, we need more and tougher prison sentences for repeat offenders ... The three strikes and you're out for violent offenders has to be part of the plan." While Hillary is not Bill, her lukewarm criminal legal positions since 1994 have not helped negate her share of the culpability for the prison population increase of 673,000 that took place on her husband's watch.
More recently, Hillary Clinton has undertaken major rebranding efforts. In April 2015, she devoted her first major campaign speech to remaking her criminal legal image. Coinciding with the uprisings in Baltimore after the killing of Freddie Gray, Clinton's speech dug deep into her empathy toolkit. She told the audience, "not only as a mother and a grandmother but as a citizen, a human being, my heart breaks for these young men and their families." Adding analytics to emotional appeal, she stressed that "without the mass incarceration that we currently practice, millions fewer people would be living in poverty." She concluded that the time has arrived "to end the era of mass incarceration." Still, instead of showing remorse for past misdeeds, Clinton went on to place herself squarely in the ranks of the determined, war-weary reformers by reminding listeners that "measures that I and so many others have championed, to reform arbitrary mandatory-minimum sentences, are long overdue." Of course, two decades ago, she herself was a champion of mandatory minimums.
From Ted Cruz to Hillary Clinton, from Rand Paul to Bernie Sanders, the 2016 candidates represent a very different scenario for the issue of mass incarceration than the 2012 campaign, when it was totally off the radar. However, more important than the details of shifting positions and personal epiphanies are the reasons behind this sudden interest in criminal justice - and whether it will contribute to meaningful change.
Why the Changes?
Mainstream commentators depict candidates' shifts on mass incarceration as an almost spontaneous process. They attribute the changes of heart to either soul-searching over poor people serving 30 years for marijuana possession or urges to apply fiscal discipline to the astronomical costs of caging over 2 million people. Yet, as activist and historian Barbara Ransby told Truthout in an interview, "Politicians have been forced to address mass incarceration because of the unrelenting organizing at all levels." That organizing included the largely Latino youth who protested President Obama's continual escalation of deportations, as well as the hundreds of thousands of Black youth and other racial justice activists who poured into the streets of Ferguson, Baltimore, Chicago, New York and other cities in response to police killings. These urban uprisings cranked up the heat in the halls of Congress and state legislatures across the country, compelling elected officials to look for ways to calm the waters.
Moreover, both major Democratic candidates have been directly engaged by Black Lives Matter (BLM) activists on issues relating to mass incarceration. Earlier this year, BLM members disrupted Sanders' speeches in Seattle and Phoenix, arguing that his views on racial justice failed to acknowledge the importance of Black lives. To his credit, Sanders refrained from a totally defensive response, opting to create a platform on race and racial justice on his website. The platform, which appeared just days after the Seattle disruption, devotes considerable attention to criminal justice, condemning the war on drugs, damning excessive reliance on punishment and highlighting the massively disproportionate incarceration of Black people. Sanders reserves special opprobrium for private prisons, which he describes as "morally repugnant." Unlike fellow White House aspirants, he also stresses the class nature of mass incarceration, noting that "not one major Wall Street executive has been prosecuted for causing the near collapse of our entire economy."
BLM activist Evelyn Reynolds, a cofounder of a Black Lives Matter chapter in Central Illinois, considers Sanders' move a "positive step" but argues that the issue requires a "leap instead of a step." Calling this set of policies "criminal justice 'reform,'" Reynolds said, "speaks to his lack of understanding of what BLM activists are asking of him. The American criminal justice system needs to be dismantled and rebuilt."
Clinton and Black Lives Matter
In early August, Clinton faced a slightly less confrontational encounter with BLM forces in a backstage conversation after a New Hampshire speech. The activists, led by Daunasia Yancey, founder of the local Black Lives Matter group in Boston, pressed Clinton on her family's role in promoting "white supremacist violence against communities of color." Then Yancey's colleague, Julius Jones, drilled down on mass incarceration, calling it a "system [that] mirrors ... the prison plantation system." With Clinton on her back foot, the BLM activists asked her to explain how and why she had changed her perspective since the days of backing husband Bill's draconian policies. Hillary dodged the question and talked about her long history of work with children before finally admitting the BLM members' analysis was "totally fair" and that "there has to be a reckoning." However, instead of delineating her plan of action, she began pointing her finger at her interrogators telling them, "you're gonna have to come together as a movement and say, 'here's what we want done about it.'" Her reaction prompted Jones to reply: "I say this as respectfully as I can - but if you don't tell Black people what we need to do, then we won't tell you all what you need to do. Right?"
Not long after Clinton's dialogue with the BLM members, the Democratic National Committee issued a formal statement in support of Black Lives Matter. The resolution was approved at a national gathering where the keynote address focused on mass incarceration and the "New Jim Crow."
As a grassroots activist, Reynolds maintains a cautious position on electoral politics. "My personal opinion is that activist organizations like BLM should not place much energy into political elections," she told Truthout. "I would hope that individuals would vote for worthy candidates, but no one individual is going to be able to bring about the social transformation required to end extreme injustice."
Politics of Respectability
Ushering BLM and the issue of mass incarceration onto the presidential campaign agenda can also be seen as part of an effort to channel current protest movements into what activists refer to as the "politics of respectability." Over the course of the last few months, politicians, civil rights leaders and corporate social responsibility operatives have attempted to redirect protest energies out of the streets and back inside the respectable tent of officialdom and polite discourse. This initiative has included a rewriting of the history of the 1960s and 1970s, exemplified by the chronicle of civil rights movement stalwart Barbara Reynolds. In an August op-ed for The Washington Post, Reynolds complained that BLM demonstrations were "peppered with hate speech, profanity, and guys with sagging pants that show their underwear." By comparison, she depicted the movement of her era as one with "an innate respectability because our leaders often were heads of the Black church."
However, Barbara Ransby, author of an award-winning biography of civil rights icon Ella Baker, offered Truthout a different interpretation of this history. "As the Black freedom movement of the 1960s evolved, the most influential voices in that movement rejected the politics of respectability and the class-biased notion that only 'proper and polite' protesters were legitimate." Ransby cited the Student Nonviolent Coordinating Committee (SNCC), the Black power movement and the Black Panthers as organizations that "put away suits, ties and dresses" and bore "little resemblance to Reynolds' ideal of pious protesters asking nicely for their freedom."
In fact, the struggle to end mass incarceration has generated its own form of the politics of respectability: bipartisan unity between Democrats and Republicans. Gingrich's Right on Crime organization as well as the joint efforts by Paul, Cruz and Booker in sponsoring sentencing reform fall into this category. This approach has gained additional steam this year with a significant cash injection from the Charles Koch (of the Koch brothers) Foundation. A March conference sponsored by the Kochs and hosted by Gingrich and former Obama administration member Van Jones brought 600 high-profile activists and policy wonks to the Marriott Inn in Washington, DC, for a one-day session largely devoted to singing the praises of conservative reformers like Georgia Gov. Nathan Deal and Utah Sen. Mike Lee, as well as listening to a speech by then-Attorney General Eric Holder. President Obama even sent a specially made video clip. In addition, luminaries among the formerly incarcerated took part. These included Shaka Senghor, whose TED talk about turning around his life after his imprisonment has received over a million hits, and Orange Is the New Black author Piper Kerman. Since that time, the Koch Foundation has organized a series of state-level gatherings with the same bipartisan reform theme in Georgia, Florida, Virginia and Illinois as well as a similar summit in November.
While progress on the criminal legal system cannot take place without the involvement of elected officials, many activists on the ground are concerned that such partnerships will serve to blunt the parameters of demands and lure grassroots community builders into election campaigning. Ransby is particularly skeptical of Republicans' supposed concern for incarcerated people "since their policies have demonstrated such callous disregard for poor people of color in absolutely every way." She argues that the problem is a "carceral state," not "simply prisons." BLM's Reynolds emphasizes that "revolutionary activists" should keep their focus on systemic change and "exert their energy in extinguishing structural and cultural injustices. Without total transformation of systems of privilege and oppression," she said, "we will keep chipping away at the surface of these massive issues and fail to ever sever their core."
The "Other" Parties
Some political parties outside the TV debate circle have echoed these worries. The Green Party has a particular concern with Sanders, arguing that his role is simply "sheep dogging" - leading critically thinking voters back into the Democratic Party rather than promoting a break with mainstream respectability politics.
National co-chair Andrea Merida says that the Green Party asks more fundamental questions than Sanders or any other candidate. We "want to make a deep analysis of the neoliberal policy that impacts the situation," she said, pointing out that mass incarceration is "not just simply about bigotry." She depicts the Greens as a party of "intersectionality" where the "grand agitating factor ... is the profit motive" significantly driven by "white supremacy." Their party platform maintains that justice systems should be "based in love, compassion, nonviolence and humility, while at the same time provide protection for those who have been harmed and for the rest of society." The party particularly promotes systems of restorative and transformative justice that advance crime prevention by "looking at the systemic roots of crime in inequality and alienation."
Steve Edwards, a veteran of Socialist Alternative, the party of well-known Seattle City Council Member Kshama Sawant, is more conciliatory to Sanders. In an interview with Truthout, Edwards lauded Sanders for opening up a "floodgate of discussion about, and enthusiasm for, socialism" as well as for putting together a racial justice platform that "is so detailed and precise that a movement could and should be built around it."
While left parties give considerable attention to Sanders, he remains at best a long shot. The more likely eventuality, a Clinton victory, yields a different terrain. One fear is that in the rush to avoid the election of a Tea Party-leaning Republican, movement activists will either cut back on their work against mass incarceration or tamp down their demands in the name of greater unity. The collapse of the antiwar movement into the ranks of the Obama campaign in 2008 is one cautionary precedent.
Regardless of such potential perils, the 2016 election marks a milestone for addressing mass incarceration in the United States. Ultimately the arrival of mass incarceration into the mainstream political agenda, especially the presidential campaign, constitutes a necessary step in transforming the system. Nonetheless, the complexities of continuing to mobilize and build a grassroots, democratic organization that includes leadership from those millions of individuals and families critically impacted by mass incarceration remains a challenge. The key question is how to engage the opportunity that the current juncture represents without falling prey to the calamitous compromises that the seductive processes of electoral politics almost inevitably produce.