Left and Right Agree on Criminal Justice: They Were Both Wrong Before

One contributor to a new report on American criminal justice called the current system “an affront to our most fundamental values of freedom, equality and liberty,” then suggested sentencing fewer people to prison, sealing nonviolent criminal records and restoring voting rights for released offenders.

Another wrote, “To endlessly punish those who have paid their debt to society is simply immoral,” then suggested, well, sentencing fewer people to prison, sealing nonviolent criminal records and restoring voting rights for released offenders.

If the messages were similar, the messengers were far from it. The first was Senator Cory Booker of New Jersey, a Democratic candidate for president. The second was Mark Holden, a senior vice president of the company owned by Charles G. and David H. Koch, who have spent hundreds of millions of dollars promoting conservative causes.

And if the report showed one thing, it was this: There is a new bipartisan consensus on criminal justice, and it is that the old consensus was wrong.

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences. Eight called for eliminating cash bail. Seven called for alternatives to prison for nonviolent crimes.

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The report, published Thursday by the Brennan Center for Justice at New York University, is a sequel to one published four years ago, in which the 2016 presidential candidates outlined their criminal justice platforms. The new essays, including those from eight Democratic candidates and Jared Kushner, a senior adviser to President Trump, show how profoundly the debate has changed.

“In 2015, our goal was to get all of these candidates on record simply saying the word that they were committed to reducing the prison population,” said Inimai M. Chettiar, who leads the center’s Justice Program and was an editor of the report. “Four years later, I think it is a very different landscape, where they are not only committing to ending mass incarceration but also coming forward with far bigger proposals and more specific proposals.”

In revealing bipartisan openness to change, the 2015 report was itself a major shift “after decades in which candidates competed to see who was the most draconian on crime,” said Michael Waldman, president of the Brennan Center.

The new bipartisanship has extended to Congress, which passed the First Step Act last year with support from the Trump administration and groups as ideologically disparate as the Center for American Progress and the American Conservative Union. The bill, among other things, reduced some mandatory minimum sentences, expanded early-release programs and increased job training for former prisoners.

But now, the calls are for systemic change, not tinkering around the edges. Proposals that stood out in 2015, like restricting employers from asking about criminal records on job applications, have become baselines.

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere. In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P. This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether. Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses. Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

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Jared Kushner, center, a senior adviser to President Trump, wrote an essay in the new report and supported criminal justice legislation last year.CreditAl Drago for The New York Times

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Senator Kamala Harris of California — who has emphasized her career as a self-described “progressive prosecutor” but has also faced some criticism for her record — suggested financial incentives for prosecutors’ offices to reduce incarceration and recidivism, instead of the current incentives for convicting more people and imprisoning them longer. She also focused on funding for overworked public defender offices; more than 90 percent of felony convictions come from plea bargains, she wrote, which “must lead us to wonder whether a guilty plea is truly a result of evidence of guilt or the lack of resources to mount a meaningful defense.”

Mr. Holden, who works on criminal justice and other public policy issues for Koch Industries, owned by the Koch brothers, went further: Until public defenders are sufficiently funded, he wrote, “the government should not be allowed to prosecute defendants who lack an effective advocate.”

Notable, too, was the extent to which many contributors focused on root causes of mass incarceration — including some that are not, on the surface, related to criminal justice at all.

Julián Castro, the former housing secretary, based his essay on the premise that “housing policy is criminal justice reform,” noting that the harsh policing of communities of color is partly a consequence of segregation. He also called on Congress to amend the Fair Housing Act to formalize Obama-era guidance, which the Trump administration is trying to reverse, that says blanket bans on renting or selling to anyone with a criminal record are illegal because they disproportionately affect people of color.

Senator Amy Klobuchar of Minnesota emphasized addiction prevention and treatment, the focus of one of her campaign’s first major policy proposals. “You can’t break the cycle of drug abuse and destructive behavior just by locking a person up,” she wrote, calling for more funding for drug courts, which impose supervised treatment instead of prison time.

In part because of the sheer number of Democratic primary candidates, liberal voices outnumbered conservatives in the Brennan Center report. But the activism in recent years has been broadly bipartisan.

“Obviously it’s good that it’s a lively subject in the presidential campaign,” said Marc Levin, vice president of criminal justice policy at the conservative Texas Public Policy Foundation, who contributed to the 2015 report. But “when you have 21 voices on one side, we don’t want people to draw the wrong conclusion and think that the only energy for reform is coming from the left.”

Mr. Levin highlighted measures passed recently in both red and blue states — important developments given that the vast majority of inmates are in state prisons, not federal ones. Oklahoma voters approved a ballot measure downgrading some drug-related felonies to misdemeanors. New Jersey and New Mexico revised their bail systems. Gov. Bill Lee of Tennessee, a Republican, has proposed several changes.

Though there are some policy disagreements — Mr. Levin called the idea of eliminating private prisons “somewhat of a distraction,” saying other measures would be more effective in decreasing incarceration — the differences between liberals and conservatives are more in rationale than in substance.

Three conservatives in the Brennan Center report — Mr. Holden, Mr. Kushner and Holly Harris, executive director of the Justice Action Network — emphasized the system’s fiscal inefficiency and tendency to preclude second chances, while liberals emphasized racial and economic justice. But the arguments generally led them to the same place.

It is not unusual for divisive issues to, gradually, become subjects of agreement. But the shift evident in the report is rarer: a wholesale reversal of bipartisan consensus.

For many years, Republicans cast Democrats as “weak on crime,” nowhere more effectively than in the 1988 presidential race. George Bush’s campaign used the case of Willie Horton, a black prisoner who had raped a white woman after a Massachusetts law allowed his temporary release from prison, to tar the Democratic nominee, Gov. Michael Dukakis of Massachusetts. Historians have drawn a line between those attacks and Democrats’ decision, under President Bill Clinton, to endorse an unsparing approach to criminal justice that disproportionately incarcerated African-Americans.

Now, members of both parties are denouncing that approach as unsparingly as they once promoted it.

“After decades in which fear of crime and ‘tough on crime’ were the ultimate wedge issue, now there’s a competition to see who can have the most transformative reform,” Mr. Waldman, the Brennan Center president, said. “In three decades, to go from Willie Horton to ‘how do we end mass incarceration’ is a long leap.”

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