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Bipartisan Unity on Mass Incarceration: Opportunity or Sidetrack for Movement Building?

Bipartisan unity on mass incarceration policy has prompted both optimism and serious critique.

Mass incarceration continues to trend. As Heather Thompson, professor of history at the University of Michigan and leading scholar on the Attica prison rebellion, told Truthout, “Three years ago to talk about incarceration was like you were talking Latin.” No more.

The past year has offered us a cavalcade of conferences, webinars, nonprofit startups, media events, potential and actual legislation along with feel-good moments where everyone from Rand Paul to Eric Holder jumped on the bandwagon of criminal “justice” reform. While this has been a process, two events do stand out.

The first was the extravagant Bipartisan Summit on Criminal Justice Reform in Washington, DC, in March. The unlikely collection of sponsors included the Koch brothers, the American Civil Liberties Union (ACLU), and Van Jones’ nonprofit #cut50 (as in reduce the incarcerated population by 50 percent in 10 years). Additional support came from partnering organizations like the Drug Policy Alliance, the Sentencing Project and the American Legislative Exchange Council (ALEC).

The summit, emceed by Jones, brought together an array of superstar speakers from various parts of the political spectrum: Newt Gingrich; conservative Georgia governor Nathan Deal; former prisoner turned writer, entrepreneur and activist Shaka Senghor;Orange Is the New Black author Piper Kerman and singer John Forté, who played his guitar and spoke about his own incarceration. In the audience dozens of state and federal elected officials joined well-known researchers and activists who were fighting mass incarceration long before Charles Koch knew what a mandatory minimum was. Since this summit, the Koch brothers have built the event out into a roadshow, holding smaller versions in Ohio, Florida, Georgia and Illinois.

The second landmark was Hillary Clinton’s speech on April 29. Addressing the David N. Dinkins Leadership & Public Policy Forum, Clinton tried to trump all other candidates’ positions on criminal justice by calling for an “end to mass incarceration” and declaring her support for “common sense reform.” While she offered no contrition for her and her husband’s major role in expanding both prisons and the punishment paradigm during Bill Clinton’s presidency, Hillary hit all the buzzwords, touching on racial disparity, the need for drug law reform, etc., etc. Unlike in 2012, when being “tough on crime” was still in vogue and Barack Obama didn’t make a peep about incarceration, the 2016 presidential candidates are priming their publicity machines to develop vote-grabbing sound bites on criminal justice. A third key moment could be in the offing, if Obama comes through on recently touted granting of clemency petitions.

For those who have been decrying US incarceration rates and exposing the prison industrial complex for decades, the new terrain is simultaneously promising, challenging and confusing. Bob Libal, head of Grassroots Leadership in Texas and a long-time opponent of private prisons, calls it a “window of opportunity.” Marc Mauer, director of the prominent progressive think tank The Sentencing Project, told Truthout there is “room to work together without having to give up core beliefs,” noting that “we may part ways [with conservatives] down the road.” By contrast, Naomi Murakawa, author of The First Civil Right, which chronicles the leading role played by Democrats in prison expansion, said she expects “little or no break” in the mindset and practice of “hunting and caging” people.

Flurry of Legislation

One thing is certain: In an election season, this bipartisan moment will precipitate a flurry of campaign promises and formulation of new legislation. Thompson, who also spoke at the March summit, expects significant sentencing reform, especially at the federal level. Mauer predicts changes to drug laws as well. Some movement is already evident. Recently, a Supreme Court ruling moderated the use of the “career criminal status” in the federal system, an action that could impact up to 7,000 people. The Smarter Sentencing Act, the SAFE Justice Act and a number of other criminal justice reform bills aimed at addressing harsh sentencing are in the congressional hopper.

Despite drawing considerable media attention, congressional legislation in most cases only impacts the federal system, which includes about 10 percent of US prisoners. State prisons, which house about 60 percent of the nation’s incarcerated, are governed by their own laws and regulations. In 2014-15, some 30 states took steps to reduce prison populations, from eliminating juvenile life without parole (West Virginia) to reducing marijuana penalties (Maryland and Oregon). A number of states are considering measures to release people who are elderly or ill, as well as moderating penalties for nonviolent offenses. All of this will likely lead to some decarceration, which has been a key goal of social justice activists for years. Since 2009, prison and jail populations have tailed off by about 2.4 percent after three decades of meteoric expansion.

However, while legislation may lead to decarceration (an overall reduction in the rate of imprisonment), ensuring that reforms are amenable to the boundaries of bipartisan unity can mean keeping in line with the neoliberal paradigm followed by conservatives and most Democrats. Deborah Small, the founder of Break the Chains, an activist group that seeks to decrease racial disparities in arrests, convictions and incarcerations for drug offenses, questions such a paradigm. She suggested that rather than focusing on decarceration, social justice activists should reframe the problem as one of criminalizing poverty, of which mass incarceration constitutes a subset. In her words, “Reframing the campaign as one to reduce criminalization would also weed out those who see prison reform as a vehicle to promote privatization and limited government and have no interest in the ‘justice reinvestment’ approach that seeks to use savings derived from reduced incarceration to invest in the communities where the majority of criminal justice consumers live.”

The Texas Model

Small’s concerns are reflected in the fact that emerging models for alternatives largely come from the right. At a state level, reforms that have taken place in Texas repeatedly surface as ones of “best practice.” By now the 2007 efforts of Republican Texas legislator Jerry Madden to reach across the aisle and develop a counter to a proposal to spend $530 million on 17,000 new prison beds have become key marketing scripts for bipartisanism. Madden described to Truthout how his efforts, in tandem with Democrats, were aimed at breaking “a criminal justice trend” while ensuring public safety. The results, he said, were “amazing,” leading to the closure of three state prisons and nine juvenile facilities.

Texas has also used funding previously dedicated to prisons to back drug treatment and re-entry. Madden predicted Texas would continue to see a “slow drop” in both prisoner numbers and the crime rate. While still the largest state system in the United States, Texas’ prison population has fallen by about 2.6 percent since 2010. However, many activists on the ground remain skeptical of the Texas model. The Austin-based Libal, a long-time opponent of the state’s private prisons, told Truthout that the changes were “a drop in the bucket considering the crisis of mass incarceration in Texas,” which in his view remains a “hyperincarceration state.”

But despite critiques of the Texas model, Madden’s brand of right-wing criminal justice reform has found a voice. Propagating this vision has largely fallen on the shoulders of Right on Crime (ROC), a conservative criminal justice think tank and advocacy group in which Madden, Grover Norquist and Newt Gingrich play leading roles. Formed in 2010, ROC has helped the bipartisan reformers hijack the criminal justice microphone. For years, radical and progressive critics like Angela Davis, Ruth Wilson Gilmore, Marc Mauer and more recently, Michelle Alexander, have monopolized the discourse. They may now be edged out by prime ROC cooperant Van Jones along with core ROCers Gingrich, prison fellowship founder Pat Nolan, Gov. Nathan Deal and, perhaps most importantly, Mark Holden, the public face of Koch Industries, which is bankrolling much of the Right on Crime efforts.

Part of the agenda of these new spokespeople, according to Thompson, has been rewriting history by not “adequately crediting social movement activism,” including mobilizations around Ferguson as the catalysts for bringing mass incarceration onto the agenda. Cory Greene, a formerly incarcerated New Yorker who now heads How Our Lives Link Altogether (HOLLA), a social justice organization devoted to youth of color, agrees with Thompson. He contends that mass incarceration has become a “buzzword” because of the struggles of many people over the last “30 to 40 years” but noted in a Truthout interview that many adopting the rhetoric now “have a language to say something but no depth,” no real understanding of how imprisonment “impacts families and communities.”

How New Is Bipartisanism?

Moreover, while advocates and mainstream media have stressed how “new” this bipartisan approach is, Murakawa and others maintain that criminal justice has been a point of across-the-aisle unity throughout the last three decades as Democrats and Republicans worked together to implement “tough on crime” legislation and to fuel the war on drugs. Several formerly incarcerated activists have raised this point.

“There’s nothing revolutionary about a coalition that’s always existed deciding to continue on, albeit in the opposite direction,” said Glenn Martin, president and founder of JustLeadershipUSA, an advocacy group seeking to cut the US prison population in half by 2030. Dorsey Nunn, founder of All of Us or None, a grassroots effort to advocate for the rights of people with felony convictions, expressed the argument more bluntly: “You say this is a bipartisan moment. My oppression was bipartisan. White supremacy and racism are bipartisan.”

Challenges for a Social Movement Against Mass Incarceration

Ultimately, the bipartisan approach presents several key challenges for building a social movement focused on mass incarceration and criminalization. A hot-button issue in this regard remains differentiation between people with convictions for violent and nonviolent crimes. Early release or community service for people with nonviolent charges is a linchpin of the reform agenda and one that attracts considerable public sympathy.

Critics argue that such an approach has at least two major shortcomings. In a recent article for The Marshall Project, Dana Goldstein emphasized that the number of incarcerated people could not be even halved by freeing all those with nonviolent cases. In Goldstein’s estimate, people with drug offenses comprise only 16 percent of the more than 1.3 million people in state prisons. Hence even a “cut 50” approach, which would still leave the United States with an incarceration rate double that of most European countries, could not fully succeed by simply freeing everyone with a drug conviction. The article concludes that any significant decarceration would have to involve either releasing or not charging people involved in crimes of violence, who are disproportionately people of color.

But for Murakawa, the issue is more philosophical. She argues in favor of “denaturalizing the division between nonviolent and violent,” maintaining that this division “preserves the overall intensity of punishment” by vilifying individuals who are victims of the same system as those with nonviolent convictions. Greene expressed similar views, noting that these trade-offs may also dull the race, class and gender lens by adopting a “politics of respectability” where people convicted of certain kinds of crimes or who are of certain genders get thrown under the bus. He cites, for example the possibilities of pitting “cisgendered men against transgender folks” in the name of pragmatism. In practice, however, resisting this division poses difficult decisions in terms of how to respond to legal reforms that offer relief only to those with nonviolent convictions.

Strategic Trade-Offs for Organizations

Beyond the question of violent versus nonviolent offenses, those involved at a grassroots level must assess other types of trade-offs. A critical strategic point is deciding how to balance efforts at building alliances for legislative change with extending popular support in communities of color, which are most impacted by incarceration. On the one hand, pushing for changes in laws may offer short-term possibilities of reducing prison numbers. In addition, this is likely to be an area where bipartisan unity is helpful, as well as a good bet to attract donor support. But this activity often relies on extensive research, lobbying elected leaders and the ability to negotiate the terrain of complicated government processes. Such an orientation tends to privilege the skills and networks of the educated, who often remain disproportionately white and in many communities, cisgendered males.

On the other hand, mobilizing critically impacted communities and linking issues of incarceration to other grassroots efforts to address housing, education, unemployment, gender oppression and violence requires very different skill sets and personal networks. Also, if bipartisan unity increasingly becomes the dominant paradigm, organizations may find it difficult to attract funding support for more bottom-up processes. Nonetheless, some organizations have been able to successfully assess this tradeoff and carry out effective action. One example is the initiatives to “ban the box.” Begun by All of Us or None in the early 2000s, “ban the box” campaigns have mobilized a vast range of both legal experts and formerly incarcerated people. Their work has highlighted the injustices of denying people access to employment due to a felony conviction while developing an effective, if limited policy measure that has been adopted by many state and local governments across the country.

In the future, legislative opportunities are likely to come at a faster pace, often tempting organizations to drop their constituency building efforts to help pass what are often defined as “game-changing” legal measures. All of Us or None organizer Manuel La Fontaine told Truthout he worries that this sort of bipartisanship will marginalize “those who are directly impacted … the critically conscious edge.” He fears that initiatives that focus solely on legislative change will select the “sanitized voices” from among the formerly incarcerated, rather than those who are imbedded in the communities where mass incarceration has hit hardest.

Many specific measures and pieces of legislation contain trade-offs within their texts as well, often promising relief for people adjudged as deserving while ratcheting up the punishment for people deemed a threat to public safety. The 2014 Proposition 47 in California exemplified the difficulty for social justice organizations to respond effectively in such situations. Prop 47 offered the promise of releasing up to 10,000 people from state prisons by converting certain nonviolent felonies to misdemeanors. The measure had the backing of progressive state-level politicians while conservative organizations such as the police chiefs’ and sheriffs’ associations opposed the measure, claiming it would threaten public safety. However, some social justice activists also had different reservations, arguing, among other things, that the proposition reinforced the division between people convicted of nonviolent crimes and those convicted of violent offenses. In the end, while the proposition passed, no unified stance by anti-prison forces emerged. Californians United for a Responsible Budget (CURB), a leading statewide coalition with considerable roots in the prison abolition tradition, opted not to take a position on Prop 47. Other organizations with long histories of a radical critique of the prison-industrial complex fell on different sides of the fence. A New Way of Life – a group based in Los Angeles that advocates for the rights of formerly incarcerated women and their families, along with All of Us or None – supported the measure, arguing that the release of people from prison overrode any other considerations. By contrast, pro-abolition groups like Critical Resistance and Justice Now opposed the proposition. Such divisions highlight some of the complexities of dealing with the new terrain.

Extending Parameters

Beyond these conundrums, some activists have expressed the need to come forward with bold initiatives. Marc Mauer, for example, put forward a proposition to cap all prison sentences, except in the most exceptional circumstances, at 20 years. Murakawa suggests that a virtual purge of existing legislation must take place, a process of paring away the vast number of laws, regulations and ordinances that have become vehicles for punishing the poor. In the absence of this type of change, Murakawa fears that restructuring will only mean net-widening, or finding new ways to expand the “prison beyond the prison” through repackaging punishment via “alternative” measures like electronic monitoring, gender responsive jails or mental health lockdowns, which generate revenue for prison profiteers. Similarly, Libal expressed concern about moving people from the “prison industrial complex” to a “treatment industrial complex,” where carceral-like conditions emerge in institutions supposedly addressing mental health issues and substance abuse.

Key Question: Pushing Parameters of Debate

Ultimately, the key question for a social movement focused on mass incarceration and criminalization is finding ways to push the parameters of the debate beyond a narrow legislative focus while not rejecting viable options for legal reform out of hand. While in the past, pressing for sentencing reform itself was often a radical measure, in the present context, Thompson argues that the left must shift away from sentencing reform and “start reinvigorating the discussion about community investment.” Likely this would also include incorporating concepts of transformative justice in such initiatives.

All this points to the need for a more coordinated national social movement. While there have been repeated calls for such a formation, to date nothing on a significant scale has emerged. Perhaps the forces within Black Lives Matter and the movement for undocumented immigrants’ rights can become a significant voice on criminal justice issues beyond policing and immigration. Without such a movement, slow, cosmetic change is the most likely outcome of bipartisan unity. As Glenn Martin put it, “The lack of urgency on both sides of the aisle is business-as-usual,” especially once election season passes. He stressed that this inertia dominates when “top-down approaches … are divorced from grassroots organizing.” Ultimately, he argues, we need a process that’s “driven by values, not just budgets.”

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