A Bipartisan Measure of Genius
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
There is a measure of genius behind the renewed bipartisan effort to create a National Criminal Justice Commission, a blue-ribbon panel of experts who would spend 18 months investigating America’s criminal justice system and issue recommendations.
If the bill passes Congress and is signed by President Trump, we will have a 21st century version of the Katzenbach Commission, which would be a great thing. (Named for then Attorney General Nicholas Katzenbach, the 1967 panel made more than 200 recommendations, including better training for law enforcement, creation of the Bureau of Justice Statistics and establishment of the 911 emergency call system.) In this era of alternative facts—right down to the president’s false claims about crime—the expression of a consensus on criminal justice would be invaluable. We cannot solve the many problems of the system unless those problems are accurately identified and agreed upon. This commission provides the opportunity to do just that.
And if the measure fails on Capitol Hill or is vetoed by the president, we still will be ahead of where we are today. The debate about the commission will flush from cover those lawmakers who talk up justice reform but then don’t back up their talk with actual votes. No politician who is serious about criminal justice—serious about reducing crime and enhancing justice, serious about restoring trust between police and the communities they serve, serious about the economic consequences of mass incarceration—can be opposed to the creation of a bipartisan group charged with figuring out where we can do better.
Should the commission become a reality, there are two principal reasons for concern. The first is that lawmakers opposed to meaningful justice reform and hard-line bureaucrats like Attorney General Jeff Sessions will use the commission as an excuse to kill any legislation..I can hear these politicians now: “Let’s not enact sentencing reform until we hear back from the Commission on precisely what sort of sentencing reform we actually need.” Memo to lawmakers: we already know what sentencing reform we need.
The other potential pitfall is the makeup of the commission. The proposed legislation states that officials from both parties (and both the executive and legislative branches) will select the 14 members of the panel. A good start. There are many earnest, qualified candidates, with divergent views about criminal justice, who would be great choices for the commission. An ideal panel would be diverse, not just racially and ideologically, but academically and professionally as well. Criminal justice means different things to different people depending on which phase of the system they see. The panel should reflect these varying perspectives. .
But there also are a lot of people floating around the world of criminal justice whose presence on the panel would poison the entire endeavor. If I were a federal lawmaker contemplating this bill, I wouldn’t want to buy a pig in a poke. The debate about the legislation should also specifically discuss who would serve on the commission. Even the least curious lawmaker shouldn’t be asked to vote on this measure without knowing, for example, whether Trump wants what are perhaps his two favorite cops to serve on the commission: former Maricopa County Sheriff Joe Arpaio and Milwaukee County Sheriff David Clarke.
A National Criminal Justice Commission is an opportunity for the evidence-wing of Congress to assert itself. It is heartening to see bipartisan Senate support for the panel as well as early backing from both prominent civil rights and law enforcement organizations. They are doing so in part because they understand a Trump/Sessions administration jeopardizes the hard-fought reforms of the past decade. They also are doing it, of course, because they understand how vast the gulf often is between the promise of justice in America and its delivery.