The Consequences of Our Underwhelming Criminal Legal System Reform Debate

With criminal legal system reform figuring prominently in the early stages of the 2016 presidential race, its national moment has undeniably arrived. And with it, our country’s march – or rather grueling slog – toward a system of greater humanity is rightfully celebrated. After all, we stand at the brink of repairing an institution that violently mocks US rhetoric about justice and equality. Excitement naturally flows from the near reversal of a policy hellscape that’s claimed the lives of so many.

But if we’re honest with ourselves – an aversion we won’t examine too closely – we’ll see through the haze of triumphalism that, in pivotal ways, the debate itself remains a specimen of underwhelming political theatre.

By my count, the entire reform affair is warped in two grave and complementary ways that, if left unresolved, may sink the odds of transforming our nation’s most widely discredited institution. That is, as we revel in our moral courage, we’ve failed to fully apprehend the enormity of our moral failures.

The first blunder is a severe underestimation of the depth of the problem.

Pick the official, pundit or writer of your choice from the cast of players. Chances are, they’ve taken center stage to unload an arsenal of numbers demonstrating both the shocking scale and unsustainability of US incarceration. And with good reason: the numbers are indeed staggering, easier to find than to avoid, and perfectly useful for contextualizing the wickedness of our chosen path. But with astonishing consistency, we’ve underestimated the herculean effort that the numbers themselves make brutally obvious.

To take one example, our obsession with the more restrained system of the pre-Nixon years is particularly revealing. The official story, spun endlessly in the popular press, is that Nixon’s Drug War swept away an otherwise sensible tradition of correctional policy. Hearts heavy with nostalgia, a reversal of that ill-fated war now embodies all of our deepest aspirations for reform. It’s a comforting tale, but hopelessly bad history.

The myth of pre-Drug War sanity is little more than a cocktail of desperate nostalgia and willful ignorance. It’s true that the Drug War – racist as the day it was born – thrust us into an era of full-blown correctional barbarism. Yet its predecessor was no less a policy nightmare, boasting a still wildly disproportionate Black-white incarceration ratio of 5:1.

Equally important to understand is that the Drug War was not the first time bigotry and political opportunism joined forces to expand the carceral state. That alliance is, at least, a century older. The heavy-handed Black Codes of the post-Civil War South are only the most hideous example. In order to beat back the political and social advance of emancipated slaves, these codes set the path for our legal system’s criminalization of Black life and have clear counterparts in the present day. The Drug War is its rightful heir. It is the planned and predictable consequence of our heritage enshrined in public policy, not its absence. Understanding this history – well-documented in Naomi Murakawa’s thoroughly-researched book, The First Civil Right: How Liberals Built Prison America – marks the distance between adopting a policy of actual fairness and a vulgar parody of one.

Which brings us to our second, and overlapping, blunder. Every adventure has its origin story and mass incarceration is no exception. Just beneath the halo of our criminal legal system reform heroics rests an ugly, immutable truth about the authors of that very system’s devastation.

It must be swallowed that mass incarceration, in all its gruesome detail, is democratic – championed by bloviating politicians, but carried out in our name and with our assent. “Tough on crime” was no accident. Few policy efforts have enjoyed such wide public support across the political spectrum. But in a feat of impressive intellectual jujitsu, we pretend that the public itself played little role in constructing brutal criminal legal policy.

The stakes are not trivial. This is the difference between confronting a system imploding on itself and one achieving the highest aspirations of its architects.

And we’ve seen those aspirations taken to their gruesome conclusions. It’s Kalief Browder’s torture at the hands of the same state sworn to protect him. It’s the preventable suffering of all the world’s Ashley Diamonds in the face of lethally harmful policy. These are inevitable consequences to a policy of deliberate violence. And make no mistake, plundering someone’s body and threatening them with physical destruction if they resist is, by definition, violence. That is manifestly true. The unavoidable question one runs up against is “who did this to them?” I suspect our silence rests with the inescapable truth of that answer: we did.

Such is the inseparable union of national virtue and national sin. Owning the best and worst of your country’s heritage is the inextinguishable contract of democracy and it applies with haunting precision to the US carceral state.

It is, to my mind, a remarkably empowering notion. Because to recall that the United States’ ghastly criminal justice record was rendered by our own callous hands is to accept that it must be repaired by the same. Anything else seems a pathetic attempt to relieve oneself of this elementary responsibility, the balance of which is paid in human carnage.