The Counterattack Begins

It’s easy to forget amid all the happy talk of political consensus that Congress hasn't yet done anything big to stem the tide of federal incarceration.

July 27, 2015

The political speeches have been honed. The sensible legislation is pending. The bipartisan boxes have been checked off. Polling shows broad public support for the endeavor. The courts, including the Supreme Court, seem open to change. So do a gaggle of political leaders from both sides of the aisle. The Justice Department is on board. The only thing missing from the criminal justice reform movement today is an actual bill passed by Congress and signed into law by the president.

It’s easy to forget amid all the happy talk of political consensus that Congress hasn’t yet done anything big to stem the tide of federal incarceration. And it would be a mistake if all those earnest reformers out there, those who say that they can practically taste legislative success, were to take that success for granted. The truth is that the political counterattack against meaningful criminal justice reform has begun and the voices arrayed against change cannot be ignored no matter how wrong they may be about the origins and scope of the problem or what ought to be done to fix it.

Voices like those of Steve Cook, the president of the National Association of Assistant U.S. Attorneys, who made headlines earlier this month when he declared in the face of a mountain of evidence to the contrary: “The federal criminal justice system is not broken.” Cook opposes the push for federal sentencing reform, and the release of thousands of nonviolent low-level federal drug offenders, and wants instead to see more prisons built because “drug trafficking is inherently violent.”

And voices like those of Daniel Horowitz, writing in the Conservative Review, who compared the Obama administration’s push for sentencing reform to its push for immigration reform and suggested we all should live in fear of  the release of “domestic criminals en masse.” It does not matter that these arguments are hyperbolic. It matters that they are being made, in increasing loud tones to conservative audiences, as Congress appears ready finally to seriously confront the issue of justice reforms.

“Mass criminal amnesty” is the made-for-cable-television catchphrase that Horowitz wants to become a mantra as the legislative debate heats up. The reformers (on both sides of the aisle) ought to figure out a response to it. The same goes for the saw that Rush Limbaugh offered recently when President Obama made his historic visit to a federal prison earlier this month. He was there, the radio host said, to “drum up the prison vote” on behalf of Hillary Clinton whom, Limbaugh said, will push during her campaign to restore voting rights for released offenders.

The “Ferguson Effect” also is a catchphrase that reactionaries want to take hold in the debate. It refers to the argument that protests against police brutality and misconduct are responsible for alleged increases in violence against the police and violence generally. Violence generally ebbs and flows—in some cities it has sadly ticked up. In others it has continued to tick down. What we do know is that violence against the police is down 25 percent from last year. More Americans than ever may be skeptical of dubious police practices and shocked by the militarization of local law enforcement agencies. But we aren’t taking out our frustration by killing the police. That’s a point the reformers must make repeatedly. America is, after all, one sustained national crime wave (or even one perceived national crime wave) away from ruining any chance for systemic reform.

After so much hard work getting the movement to this point, after convincing so many people from such a broad spectrum of ideologies in the logic of the cause, serious justice reformers do not have the luxury of forgetting that the desire for reform is not universal; that there are those in power with vested interests in mass incarceration. Momentum is a powerful force. So is inertia. It is always easier to kill good legislation than it is to pass it and it still isn’t bad politics to be “tough on crime.”

We have entered a critical juncture in the push for changes to federal law and policy that would begin to reverse the nation’s disastrous journey into mass incarceration. And the hardest part for reformers may be yet to come. The counterattack is growing in volume, it is coalescing around certain themes that trigger great fear within conservatives, and unless it is addressed it could doom the passage of federal legislation this session and beyond. That would mean, sadly for taxpayers and the families of the incarcerated, that the unsustainable costs of our current justice systems would have to be sustained for many more years to come.

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The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.