Whichever party wins control of the U.S. Senate, voters can wince at the prospect of continued polarization and gridlock. But one issue, intriguingly, seems ripe for genuine bipartisan cooperation: criminal justice reform. Yet, partly because it has become less controversial, discussions about criminal justice policy have been absent from the campaign trail. This silence creates the risk that a moment of promise will become a missed opportunity for change.
The fact that criminal justice policy is not a campaign issue is, itself, noteworthy. Consider it Sherlock Holmes’ dog that didn’t bark. For decades, politicians vied to be the most punitive, from the 1977 New York City mayoral race, which improbably turned on the issue of the death penalty (over which a mayor has no power) to the 1994 referendum that passed “three-strikes-and-you’re-out” in California. The 1988 presidential race is rightly remembered for its focus on demagogic and racially coded appeals.
”By the time we’re finished,” George H.W. Bush’s strategist Lee Atwater bragged, “they’re going to wonder whether Willie Horton is Dukakis’ running mate.”
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But times have changed, and “tough on crime” has been replaced with “smart on crime.” In the last decade, states as disparate as Texas, New York, Kentucky, and California have instituted reforms to reduce their prison populations and ease up their harsh sentencing laws. The White House just launched a major initiative to implement a more modern, sensible drug policy. Even Congress passed a law reducing the disparity between crack and powder cocaine sentences. And Americans overwhelmingly support eliminating mandatory minimum sentences for nonviolent drug offenders.
Yet, by and large, candidates have steered clear of criminal justice reform this election cycle. Perhaps they’re fearful of being painted as soft on crime. Or perhaps they simply don’t care enough about the issue to take a position.
Check out the issues pages of the websites of Senate candidates in the hottest races. Neither Michelle Nunn nor David Perdue, the two major Senate candidates in Georgia, talk about criminal justice reform. Neither do Mark Udall and Cory Gardner in Colorado. Or Joni Ernst and Bruce Braley in Iowa. In fact, you’d have to look far to find a candidate who makes even the most pro forma nod to the issue.
And that’s too bad, because not only is criminal justice important on its own, but because it impacts so many other important issues. Voters consistently list the economy and inequality as top concerns. The current system of mass incarceration costs governments around $260 billion annually; that’s about half the 2014 federal deficit.
In fact, it’s among the largest drivers of economic inequality in the United States. Finding employment or housing can be nearly impossible with a criminal record. Locking up the primary breadwinner can push a family from working-class to impoverished. And children growing up with incarcerated parents too often get pulled into the system themselves.
The system itself is rife with inequality, from gender (women are the fastest-growing subset of the incarcerated population) to race (one in three black men will spend time behind bars) to sexuality (LGBT youth are incarcerated at a rate up to three times as high as their straight peers).
Politicians and candidates cannot be allowed to remain silent on one of the largest human rights issues on American soil. But they also can’t be allowed to limit themselves to bromides about wanting reform without laying out next steps, and taking them. After all, some officeholders still resist needed changes, even as others link arms for reform.
Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) may have drawn wide attention and praise for their REDEEM Act. But the Smarter Sentencing Act of 2014, which went further and was cosponsored by Ted Cruz and Elizabeth Warren, among others, was blocked by a bipartisan group of senators. Similar battles are unfolding in state legislatures.
But, as always, there’s a way to get legislators to change their actions: threaten to kick them out.
We’ve missed the chance to make mass incarceration an issue in 2014. But a few weeks ago, Bill Clinton predicted the issue would play prominently in the 2016 presidential election. Let’s hope he’s right. But such a drastic change in election politics won’t happen unless we demand to know where candidates stand on criminal justice. We must ask why they’re holding up bills, and if they’re only paying lip service to reform.
We need to know what they will do—or why they’re not doing anything—so that the United States no longer wears the scarlet letter of being the largest jailor in the world. And if they can’t answer, hold them accountable.
Inimai Chettiar is director of the Justice Program at the Brennan Center for Justice at NYU School of Law. Abigail Finkelman is a researcher at the Center.
