How “Bipartisan Criminal Justice Reform” Institutionalizes a Right-Wing, Neoliberal Agenda

October 2016 marked the release of Ava DuVernay’s documentary, 13th: the most prominent film to date to tackle the history of mass incarceration in the US. DuVernay tells her story through the lens of the Thirteenth Amendment to the US Constitution, which abolished slavery and involuntary servitude “except as a punishment for crime whereof the part shall have been duly convicted.”

Tracing the criminalization of Black people as a class to this loophole, 13th movingly grieves lives lost to “law and order” politics[1] in recent years and invites us to join the movement to dismantle mass incarceration. The case for change is made by an unusual array of commentators, who span the political spectrum. Newt Gingrich and Grover Norquist appear on equal footing with such scholar-activists as Angela Davis, Marie Gottschalk, and Khalil Muhammad, whose work profoundly helps to shape our understanding of racialized law enforcement, police and prison violence, mass incarceration, and the growth of the public-private prison industrial complex.

Many activists are surprised to see the first two names joined with the latter. With decades of staunch right-wing activism, Gingrich, most recently an ardent supporter of racial profiling to counter “terrorism,”[2] and Norquist, who heads Americans for Tax Reform and dreams of shredding the social safety net,[3] have been made over as conservative poster children for criminal justice reform. They’re only two among scores of hardline Republicans and right-wing or libertarian think tanks and advocacy organizations promoting bipartisan collaboration.

What should one make of this? Is this the softening of the Right? Are Davis and Gingrich really in sync? Of course not. Davis is a scholar and prison abolitionist whose life’s work reflects an unequivocal, untiring commitment to expansive notions of liberation, freedom, and justice. By contrast, the Right’s — and Gingrich’s — embrace of “bipartisan reform” builds on a long history of support for structural White supremacy and a larger neoliberal austerity framework that promotes an ever-expanding emphasis on security.[4]

Those differences matter — profoundly, and sometimes in unexpected ways. How and why that came to be amounts to a cautionary tale for progressive movements about the “bipartisan reform consensus.” Recognizing its assumptions, limitations, and contradictions also helps identify opportunities to advance an unapologetically progressive, anti-neoliberal agenda in the era of Trump.

More than an actual means of improving policy, “bipartisan criminal justice reform” has become a mantra signifying hope: that people of good will can come together across ideological divides and partisan gridlock to end our country’s overreliance on expensive and unjust systems of incarceration….

Key Reform Elements: Cautionary Notes

A quick look at a few key elements of the [“criminal justice reform”] agenda suggest a more complicated story than that contained in campaign talking points. Beyond specific agenda issues and proposals are questions of how they are framed, how they will be implemented, and possible gains or losses.

Sentencing Reforms

Reduced sentences for some categories of low-level, nonviolent offenses, particularly for drug-related and minor property offenses, are a reform centerpiece. In various states, thousands of people have been released from jails and prisons; many thousands more have had their conviction records changed; still others will benefit from shorter sentences. This is a remarkable and necessary “decarceration” accomplishment that must be amplified. Thousands of others, pre-trial or pre-charge, are diverted to some form of community corrections and supervision, mandatory treatment for substance abuse, or “alternatives to incarceration.”

Some reform initiatives also increase certain sentences. Mississippi’s reforms did both.[31] So did the federal Sentencing Reform and Corrections Act of 2015, which failed to pass that year and did not gain sufficient traction in Congress the following year.[32] Should the liberal-Left sector accept some sentencing increases, however grudgingly, on the basis of pragmatism?

Expanding Community Corrections and Supervision

Bernadette Rabuy and Peter Wagner of the Prison Policy Institute emphasize that justice reform “should aim to reduce the number of people under correctional control rather than simply transfer people to other pieces of the correctional pie.”[33] But over the past decade, there has been a quiet but steady expansion in the often onerous requirements and conditions placed on people under some form of correctional control, including community corrections or alternatives to imprisonment.[34]

This system includes parole and probation supervision, treatment/rehab programs, electronic monitoring, contractual truancy monitoring, re-entry programs, and specialized drug, veteran, mental health, and other “problem-solving” courts.[35] Framed as humane alternatives that make it possible to divert people from prisons, too often they come with profound costs to the individuals remanded to them and the communities already reeling from the impacts of mass incarceration.[36] While reform often produces some degree of decarceration, it does not, by itself, dismantle mass incarceration.[37] Nor does it permanently reduce the scope of law enforcement surveillance and supervision. To the contrary, pre-charge and pre-trial diversion into some form of community corrections ends up also sweeping in people who have not been convicted of crimes, and in some cases, have not yet been arrested, but who must comply with state-imposed conditions for set periods of time before their records are cleared. This means that they bear the consequences of punishment, although they have not been found guilty of any offense. The alternative is to be formally charged, with even worse consequences accompanying possible conviction. Violation of these conditions, including failing to pay associated fees, is met with “swift and certain” responses, including incarceration.

Much of the funding for this expansion comes through “justice reinvestment” or offloading costs onto individuals who are increasingly required to pay some or all of the costs of community corrections. People who can least afford it may have to pay for drug tests and shoulder the cost of other treatment, supervision fees, and startup and ongoing (daily or monthly) fees for electronic monitoring. But many of these people shouldn’t be in the system at all.

A mix of public-private for-profit and nonprofit institutions, ranging from municipal drug courts to privately-run probation systems to corporate corrections behemoths like The Geo Group to local prisoner aid organizations, community corrections, as a category, provides uneven quality of services and technologies. Every possible arena becomes a potential corrections and surveillance site. In practice, this matrix is often plagued with profiteering, scandal, and corruption.[38] What strategies can effectively challenge this in the short term and transform it in the long run?

Money Bail Reform

A bail bond is the amount of money a defendant is required to pay as a guarantee they will show up in court. A person who is unable to pay may be — and often is — incarcerated from the time of arrest until the case is resolved.

Urgently needed, money bail reform is moving forward in a growing number of municipalities and states, but it can be a double-edged sword. In 2016, New Mexico voters approved a constitutional amendment permitting judges to deny bail to certain defendants considered “exceptionally dangerous” and also grant pretrial release without bail to those who are not considered dangerous. The ACLU and some other initial advocates withdrew support because the final wording contained changes demanded by the politically influential for-profit bail bond industry. These changes required poor people to provide evidence of poverty and added ambiguous wording that potentially could be misused against particular communities, including immigrants.[39]

In 2017, the Movement for Black Lives (MLB), in collaboration with other partners, released Transformative Bail Reform, a popular education curriculum, an invaluable and unique resource for grassroots organizers and social justice to help them understand the issues in a larger historical, social, and economic context.”[40] There must be a concerted effort to help get this information in the hands of local social justice organizers to inform their work.

“Reinvestment” Sleight of Hand

According to a 2016 Urban Institute report on Justice Reinvestment Initiative programs in many states, more than $1 billion has been saved (or calculated as averted costs) over time by reducing the number of people incarcerated in participating states. Yet JRI savings are not reallocated to improve the health and well-being of communities most impacted by race-based policing and mass incarceration, except indirectly, through recycling into some form of prison-based or community corrections work.[41]

Prop 47’s initial “community investment” savings — about $68 million once substantive governmental disputes over the correct amount were settled — were to be distributed by three different bodies through competitive grants for drug treatment, mental health services, and supportive housing for people in the criminal justice system (65 percent); programs for at-risk students (dropout and truancy) in K-12 schools (25 percent); and victim services (10 percent). Yet as of December 2016, almost two years after the passage of Prop 47, none of the “savings” had been spent for these designated purposes. (The money should be reallocated in Spring 2017.)[42]

The Movement for Black Lives and others in progressive justice movements promote far more liberatory “invest/divest/reinvest” frameworks for organizing.[43] But in many jurisdictions, progressives will have to organize to overcome or transform the closed, restrictive processes that are already institutionalized.

Rhetoric of Danger

When we fail to challenge and transform the terms of engagement, reform agendas relying on representations of danger and violent criminals always win out over social, economic, and environmental justice. In the US, anyone labeled violent, dangerous, or criminal is considered disposable. Bipartisan reform campaigns center the themes of danger and public safety, and the framing implies that “public safety” is primarily a function of policing, surveillance, and control, with the prison always in the background as the essential repository for “danger” and the disposable people who are marked as its embodiment.

That doesn’t ever bode well for justice movements but particularly now when they must contend with a new and unstable president who rose to power on a wave of right-wing populism, stoking a toxic mix of White nationalism and racialized resentment and rage. Particularly concerning is the appointment of Jeff Sessions, who has a long, racist “law and order” history, as attorney general. As a champion of voter suppression, draconian anti-immigrant policies, harsh sentencing policies, expanded incarceration, racial profiling, and unbridled police power to quell imagined or actual dissent, he is obsessed with doing battle against racialized, violent notions of criminals.[44] At the same time, justice movements know Sessions isn’t the only problem. Today’s growing torrent of state and local efforts to harshly criminalize dissent comes in the wake of anti-state violence uprisings and the Standing Rock water protectors’ assertion of Indigenous sovereignty as much as 2017 protests surrounding Trump’s inauguration.[45] The challenges we face are the result of decades of right-wing activism, not simply the ascendance of Jeff Sessions.

In 1883, the abolitionist and former slave Frederick Douglass spoke about the power of racial criminalization, noting “the general disposition in this country to impute crime to color.”[46] He was describing a massive system of racialized social control that includes prisons. In this light, consider again the Sentencing Reform Act of 1984. Ultimately calamitous (and still racially biased) policies came into being in part because “criminal justice” was narrowly framed as a standalone issue whose problems could be corrected by tinkering with the mechanics of sentencing.

It’s happening again. The US carceral system is not winding itself down as a humanitarian response to the racialized and economic brutalities of mass incarceration. Rather, it’s reinventing and renewing itself under the bipartisan mask of reform. And today, as in 1984, conservative-Right reformers are better organized to win on contested terrain.

The Right utilizes every possible issue — criminal justice reform, health care, school privatization, environmental protection, industry regulation, religious liberty — to advance an ideological agenda and coherent, holistic endgame. The progressive-Left sector, by contrast, has no similar endgame in mind.

This is an excerpt of a longer article, Endgame: How “Bipartisan Criminal Justice Reform” Institutionalizes a Right-Wing, Neoliberal Agenda, which originally appeared in the Spring 2017 issue of The Public Eye Magazine published by Political Research Associates.