by Joseph Margulies, Justia.com

Recently, the president called for the execution of drug dealers. This is idiotic, of course, both as a matter of law and policy. But no one who has been following these things should have been particularly surprised. The president says all sorts of stupid things, and since his election, he and his attorney general have done their level best to convince us that we are in the midst of a new crime wave. Be afraid. Be very afraid. And to meet the fear they would have us feel, they have tried to drum up support for yet another war on crime. Apparently, the president believes that making America great involves sending a helluva lot more people to prison (and Death Row) for a helluva long time.

Because he has been so transparent about his love for all things carceral, and because he is so exceedingly popular in so many places, many people – myself included – wondered whether his rhetoric would derail the movement for criminal justice reform that has been gathering steam since the early years of the 21st century. I watched the state of play over the last fourteen months or so, but decided it was time to take a deeper dive.

So far as I know, this is the first attempt to determine whether the president has mattered to criminal justice reform. To my relief, the answer seems to be no. He’s irrelevant. Criminal justice reform at the state level is no worse – though no better – than it was before his election. It has more or less the same shape and substance as it has for the past fifteen years. Here’s a brief rundown:

• By far the most prominent aspect of the criminal justice reform movement has been a shift in the response to at least some illegal drug use, particularly marijuana and opioids. As for the former, in January 2018, the Drug Policy Alliance assessed whether reform at the state level had been blunted by the rhetoric of the president and his attorney general. They concluded “the sky hasn’t fallen. It’s actually going very well.” Likewise, the national trend toward viewing opioid addiction as a public health challenge rather than a crime has continued without interruption.

• Another major part of the criminal justice reform movement has been a drive to eliminate the collateral consequences of a criminal conviction, including restrictions that make it more difficult for those with a conviction to get a job. Eight states passed legislation in 2017 or 2018 that eased some of these burdens, continuing a long-term, nationwide trend. Six of these states – Arizona, Indiana, Kentucky, Nevada, Pennsylvania and Utah – voted for the president in 2016 (California and Washington are the other two). Another four states – Arkansas, Louisiana, Maryland and North Dakota – adopted legislation that allows former drug felons to receive federal food stamps. Three of these four voted for the president in 2016.

• Relatedly, a number of states have over the past two decades taken important steps to restore voting rights to at least some former convicts. The National Council on State Legislatures keeps track of these reforms, and reports that in 2017, three states passed legislation that continued this trend. Two of these states – Alabama and Wyoming – voted for the president in 2016, and Wyoming’s legislature automatically restored voting rights to all non-violent felons. At this writing, similarly favorable legislation, as well as a proposed amendment to the state constitution in Illinois, is pending in a number of other states and the District of Columbia.

• In 2017, Louisiana, which has the highest incarceration rate in the country, became the 33rd state to adopt a comprehensive state-wide criminal justice legislative reform package. This reform took place under the “Justice Reinvestment Initiative.” Four other states, including Arkansas, Hawaii, Michigan and Montana – also passed progressive criminal justice legislation. Three of the four voted for the president.

• New York and North Carolina, the last two states that automatically prosecuted 16- and 17-year-olds as adults, passed legislation that raised the age of adult jurisdiction in the great majority of cases, meaning that far more juveniles in both states would stay out of adult court.

• All of this is in addition to isolated but noteworthy successes in particular locations, like the welcome move toward bail reform in several jurisdictions and the election of progressive prosecutors in places like Philadelphia. And of course, the nationwide network of advocates, activists, and organizations campaigning for reform continues to grow and become more vocal, more organized, and more effective. For them, the president is a call to arms, and they rightly take him as a challenge to be confronted with great vigor, which helps sustain the movement for reform at the national, state and local levels.

Note that in recounting this, I do not mean to exaggerate the success of the criminal justice reform movement. In general, I think it is timid and tepid and that it has accomplished relatively little of substance, as I have indicated many times before. On the other hand, it is better to take even a small step forward than to stand still or move backward. And my point is simply that, as far as I can ascertain, the president has had no effect on criminal justice reform at the state level. Whatever other dangers he may pose to democracy in this country, and there are many, he seems to have had almost no impact on criminal justice reform, and for that we should count our blessings.

In making this observation, I find myself in excellent company. Along with the VERA Institute, the Brennan Center for Justice and a small handful of other organizations, The Sentencing Project, under the long-term leadership of Executive Director Marc Mauer, is one of the most well-known and widely-respected criminal justice organizations in the country. The Project recently released its 2017 annual report, which laments the president’s ill-advised return to the law and order rhetoric of the Reagan Era. But in his letter introducing the report, Mauer notes “that criminal justice on a day-to-day basis largely plays out at the state and local level,” and that the shift at the national level “does not yet appear to be delivering significant setbacks to the momentum for reform of recent years.” The annual report does not discuss as many aspects of criminal justice reform as I do in this article and does not purport to account for the state of play, but we read the evidence the same way: so far, reform proceeds apace.

Like The Sentencing Project, I mean to be exceedingly cautious in my observations. To begin with, as Mauer notes, Trumpism does not yet appear to have blunted the movement for reform. Everyone should understand the warning implicit in this language. In addition, both of us base our assessments on what we can observe. But some of the most significant shifts may be taking place at a level that is not yet detectable. One of the most important players in criminal justice policy nationwide is the Department of Justice, which since the Johnson administration has disbursed billions of dollars to shape state and local criminal justice policies and strategies. It is anti-federalism at work. So far as I know, no one has yet carefully compared pre- and post-election funding priorities at the DOJ. That comparison, if it were undertaken, will give us some insight into longer-term objectives of the Trump administration, and tell us a great deal about what will likely happen at the state and local levels down the road. Finally, I stress that my observations are limited to criminal justice. The danger to other aspects of national life are simply not part of this discussion.

So why has reform gone forward when it seems so antithetical to the messages from the president and his attorney general? What does this continuity tell us about the nature of criminal justice in the United States today? The simplest answer is also the least satisfying: federalism matters. As Mauer notes, crime and criminal justice are local affairs, and states are perfectly free to ignore presidential prattle. But this merely repeats the question in another form. What we want to know is why the president’s rhetoric has had such limited appeal at the state and local level.

Here, the answers are necessarily tentative, but several factors are likely at play. First, given his record-setting unpopularity, there are probably some jurisdictions and state houses that interpret the president’s bombast as a call to do precisely the opposite. In some places, to be seen as siding with the president on any issue, including criminal justice, may be a political liability, especially in our hyper-partisan climate.

Second, there is the reality on the ground. Despite the president’s typically ill-informed demagoguery, crime rates continue to fall nationwide and are now at historically low levels. In 2015, overall crime rates were already less than half the rates in 1991, and both violent and property crimes continued their downward trend during 2016 and the first six months of 2017, which is the most recent data we have. This president has a notoriously cavalier regard for the facts, and never so much as when he whines about a nationwide crime wave.

The third explanation is perhaps the most important. As I have described before, criminal justice reform has done almost nothing to change the fundamental philosophy of the tough-on-crime era. Though a growing number of activists and advocates are campaigning for an alternative vision, including a public health model, in most jurisdictions criminal justice reform does not take a different approach to crime and justice so much as it takes the same approach to a slightly different fraction of the criminal justice population. In that respect, the president has not derailed criminal justice reform because it continues to endorse his basic argument: some people are intrinsically bad and need to be policed and punished severely. The president and the reform movement simply disagree about who those people might be.

There may be other factors at work, and in any case, it is probably too early to make any definitive assessments. The state of play may yet change and criminal justice reform may come to a crashing halt. But for now, I take some comfort at the president’s colossal irrelevance. 

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah [currently held at the Guantanamo Bay military prison as an “enemy combatant”], for whose interrogation the torture memo was written.

This article originally appeared on the Justia US Law website (https://verdict.justia.com) on April 2, 2018. Copyright, Justia US; reprinted with permission, with minor edits.

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