There already is a great deal of parsing over what the Democratic candidates said to each other about criminal justice reform during the latest presidential primary debates. And why not? There is obviously room to criticize the flawed policies and practices some endorsed years or even decades ago. Former Vice President Joe Biden will always have to answer now for his support for harsh federal sentencing laws. Sen. Kamala Harris has to answer for some of the positions she took as California attorney general on prison reform and police misconduct. Sen. Cory Booker's record in Newark, New Jersey, while he was mayor is not exactly pristine. And the Democrats own a share of blame for the disaster at our borders.
But it may serve voters well to take a step or two back from the specifics of these earnest arguments over how much reform is necessary or who should deliver it from the White House in 2021. This would provide a clearer picture of how far the national conversation over justice reform — and the Democratic Party as a whole — have come. We live in an age of federal sentencing reform and state marijuana legalization. Nowadays, we keep track of the number of unarmed civilians shot to death by the police and consider racial disparities in bail hearings. And today, even conservative scholars are questioning the scope of qualified immunity and capital punishment.
Which helps explain why the back-and-forth between candidates last Wednesday would have been unthinkable in the Democratic debates of 1988 or 1996 or 2004 or even 2012. Biden himself is proof of that. His tough-on-crime persona of the 1980s and 1990s may look like disastrous policy today, but it was politically expedient back then. It would have been unthinkable for then-Senator Biden, as a presidential candidate in 1988, to wax poetic about decarceration, thanks to fears that a Republican president or presidential candidate would immediately pounce on these reform ideas as being "soft on crime" — and thus dangerous and unpresidential.
That is precisely what the Republicans will do between now and November 2020. The open question, then, both for Democrats and the nation at large, is whether political attacks on the Democrats’ views on crime and punishment will have the same force they once did with voters beyond President Trump's base. Put another way, could the upcoming election become (along with everything else) a test of how comfortable ordinary Americans are about the pace and breadth of justice reform? Is that the fight the Democrats want to wage against this president? Is it a risk worth taking?
I am not sure that anyone knows the answer to that question. It is indisputable that many voters in this era of relatively low violent crime rates have seen the harsh impact sweeping incarceration has had on their friends, families, and communities. It is also clear that the current opioid epidemic has caused many Americans with no previous experience with prosecutors and drug laws and prisons to get quick and painful lessons about how arbitrary and capricious it all can be. Sentencing reform and marijuana decriminalization and certain forms of gun regulations continue to poll well. That’s how elections are won, right? By pushing popular policies.
But how far the spirit of this justice reform goes is tough to gauge, especially in the handful of states likely to decide the next election. Does it extend, for example, to police reform in the face of what will be unwavering support for Trump by police unions? No one knows. No one can know. Nor can anyone know today how successful the Trump administration has been in trying to link undocumented immigration to crime rates, a link we know is a false one. Bush the Elder had Willie Horton, the famously furloughed Massachusetts prisoner whose image was used in a racist ad against 1988 democratic nominee Michael Dukakis, the state’s governor at the time. It was good politics back then, deplorable though it was, and Trump no doubt will also try again to stoke fears of the “other."
Another open question is whether Trump will be able to nationalize the conversation about criminal justice (and law and order) the way Richard Nixon did 50 years ago or the way George H.W. Bush did 30 years ago. What happens to the debate, for example, if a paroled ex-offender shoots someone next fall in Michigan or Wisconsin or if Philadelphia’s murder rate spikes next summer? It’s easy to understand why Democrats see justice reform as a winning political topic. So much of it polls so well, especially with younger voters. But if history has taught us anything, it is that reform is seldom linear. Perhaps the 2020 election will ultimately tell us both how far the arc of justice has bent and also how much further it still has left to go.