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

About Kay Whitlock

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This article appears in the Spring 2017 edition of The Public Eye magazine.

Could it be possible…that white supremacy as an ideological formation has been nourished, rather than attenuated, by notions of progress and political development?

–Daniel Martinez HoSang, Racial Propositions

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 U.S. DuVernay tells her story through the lens of the Thirteenth Amendment to the U.S. 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” politics1 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.

Birth of the “Bipartisan Reform Consensus”

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. But what, exactly, are bipartisan advocates seeking to reform?

Most people held in local jails have not been convicted of anything but are awaiting trial.

By early 2017, according to Prison Policy Initiative (PPI), the U.S. criminal justice system held more than 2.3 million people in disparate public systems, including 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails, as well as military prisons, immigrant detention facilities, civil commitment centers, and prisons in U.S. territories. About 197,000 people are in federal prisons. An additional 41,000 immigrants are in civil detention at any given time by U.S. Immigrations and Customs Enforcement (ICE)—often in private facilities or contracted jail space—for reasons unrelated to criminal proceedings.5 Most people held in local jails have not been convicted of anything but are awaiting trial. The overwhelming majority are held in publicly-owned jails and prisons.6 The Bureau of Justice Statistics reports that an additional 3.8 million people are on probation in the United States and 870,500 are on parole. Astonishingly, this means that at the end of 2015, one in every 53 adults in the United States was under community supervision.7

Mass Incarceration: The Whole Pie 2017 (Courtesy of Prison Policy Initiative).

About 60 percent of those incarcerated are people of color, mostly Black, Latinx, and Indigenous. The rate of growth for the incarceration of women, particularly Black women, has outpaced that of men. At the intersections of race and class, LGBTQ and gender nonconforming people, and people with disabilities and mental illness are heavily policed and incarcerated.8

Over the last decade, bipartisan solutions to reforming the criminal justice system in the U.S. began to gain popular traction, as high-profile incidents of police violence drew public attention to systemic problems with law enforcement violence. In 2009, Oscar Grant III, a Black 22-year-old, was shot point blank in the back by a Bay Area Rapid Transit (BART) officer when he was already being restrained face-down. He later died, and when videos of the murder, captured by bystanders on cellphones, went viral, Grant’s death became a catalyst for protest. In 2010, Michelle Alexander’s bestselling book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, was published. A steady toll of subsequent deaths, from Trayvon Martin to Rekia Boyd to Michael Brown to Freddie Gray followed, and the Black Lives Matter movement arose, galvanizing popular resistance to state violence against Black and other communities of color.

Around the same time, a powerful public relations machine, amplified by mass media, began promoting a national bipartisan reform agenda. The agenda encompasses particular reforms that generally fall into a few areas: amending sentencing laws and addressing “overcriminalization,” reforming pretrial practices, prison release/re-entry, community corrections, and civil assets forfeiture. (Immigrant detention has never been included.)

But for progressives and anti-racist activists, this reform agenda leaves much to be desired. While bipartisan reform advocates promise justice on the cheap by reserving prisons for “dangerous,” “hardened,” and violent criminals, and lowering the number of non-dangerous offenders who are incarcerated, they have addressed neither the racialized violence of policing nor the structural racism, poverty, and economic violence that produce mass incarceration. Nor do they address the ways in which “reform” creates a massive shadow prison system.

For more than 10 years, “bipartisan reform” has been reshaping portions of the justice landscape. The bipartisan label lends a certain cachet that generally exempts it from close examination. But even well-intentioned reformers seeking to reduce racial disparities have sometimes ended up supporting policies that preserved or intensified them. In the late 1970s, seeking to eliminate widespread racialized disparities in indeterminate sentencing that kept many people in prison for unjustifiable lengths of time, liberal reformers united with conservatives on a remedy of fixed sentencing guidelines, codified in the Sentencing Reform Act of 1984. This included but was not limited to mandatory minimums for some federal crimes. But as legal scholar David Jaros observes, “Unfortunately for liberals, the guideline regime established…ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s liberal supporters.”9 The result: in most federal court districts, Black people were more likely than White people to be convicted under mandatory minimum provisions and received longer sentences than Whites convicted of the same crimes.10

And while the 1984 federal sentencing reforms did not directly produce the subsequent explosion of state “get tough on crime” laws, they helped to fuel it. This supports Angela Davis’ assertion that all major criminal justice reforms fail to challenge the system in any meaningful way, but rather try to improve upon it, with the result that “more people are brought under the surveillance of the correctional and law enforcement networks.”11 Given this history—and what is at stake—it is essential to apply a critical eye to the present generation of reform initiatives.

The bipartisan approach didn’t spring up overnight.

One of its antecedents can be found in 1990s “welfare reform,” which similarly sought to bring together Left and Right in shared effort to overhaul a complex system. In 1996, U.S. Speaker of the House Newt Gingrich and Texas governor George W. Bush, both Republicans, and Democratic President Bill Clinton, pursued new restrictions and limitations on and work requirements for people receiving public assistance and decentralization of federal welfare funding through the creation of state block grants. These measures further shredded an already-tattered social safety net and laid new groundwork for accelerated assaults on remaining New Deal and War on Poverty programs. The number of people in deep poverty increased, and reform produced yet another wave of anti-Black criminalizing discourse.12

In 1996, the Texas government released Faith in Action: A New Vision for Church-State Cooperation, a report attacking the social welfare system as a response to a host of social problems, including crime.13 A Texas Faith-Based Initiative was created. Many government-operated welfare programs were replaced with moral rehabilitation programs delivered by non-state conservative Christian institutions. The initiative included a criminal justice component. In 1997, the first contract was with the InnerChange Freedom Initiative, an evangelical residential pre-release program offered by Prison Fellowship—the global prison ministry started by former Nixon aide Chuck Colson (after his Watergate-related imprisonment) that has now become one of the largest programs of its kind in the world. Religious studies scholar Tanya Erzen has documented the subsequent rise and increasing institutionalization of faith-based (Protestant) ministries in U.S. jails and prisons.14

InnerChange Freedom Initiative is an evangelical residential pre-release program offered by Prison Fellowship. (Photo courtesy of Eric Melchor.)

Five years into Texas’ new faith-based initiative, a watchdog organization monitoring the Far Right, Texas Freedom Network, noted that while the InnerChange program originally funded its own operations, in 2001, the Texas Department of Criminal Justice began allocating money for its work, including the provision of Bible-based counseling and “Christianity-centered materials.” Along with providing new funding streams for faith-based programs in multiple arenas, the initiative justified deregulation on the basis of religious freedom.15

Texas continues to serve as an incubator and proving ground for right-wing reforms. The Texas Public Policy Foundation (TPPF), a think tank established in 1989, is a major player. TPPF has deep ties to Charles and David Koch, Exxon, and other wealthy individuals and industries,16 and supports an ambitious free market agenda emphasizing deregulation, devolution (transfer of power, accountability, and responsibility to lower levels of government and its public or private designees), and privatization. In 2010, TPPF launched Right on Crime, which plays a singular conservative role in promoting rhetorical and policy reform frameworks.17

Coalitions, Public-Private Partnerships, and Unexpected Alliances

It’s not clear exactly when the Right and more liberal actors began to seek common reform ground, but some seeds of early coalescence were evident by the early 2000s. In 2003, the Open Society Institute (now Open Society Foundations) released a paper on Justice Reinvestment as a framework for reform, arguing that it made sound business sense to cut corrections costs by reducing incarcerated populations and redirect that money to other social needs. Some portion of the billions spent on prisons would be directed “to rebuilding the human resources and physical infrastructure—the schools, health care facilities, parks, and public spaces—of neighborhoods devastated by high levels of incarceration.”18 Over the next few years, in concert with the Council of State Governments and JFA Institute, the concept of justice reinvestment was institutionalized as a mainstay of bipartisan reform, though not in the way the Open Society paper advocates.19

Other liberal groups followed suit. In 20ll, the National Association for the Advancement of Colored People (NAACP) held a press conference to release its new report, Misplaced Priorities: Under Educate, Over Incarcerate, that announced a new “Smart and Safe” campaign to reinvest money saved by reducing mass incarceration on education.20 Joined by representatives from the American Civil Liberties Union (ACLU) and other groups, NAACP President and CEO Ben Jealous called for specific reforms to keep “dangerous criminals” in prison while lowering costs by reducing sentences for low-level offenses. Neither the report nor speakers offered concrete suggestions for redirecting those savings to increased spending for education beyond the creation of vaguely defined “reinvestment commissions.”

Months earlier, Newt Gingrich and Pat Nolan, then of Justice Fellowship, the onetime political arm of Chuck Colson’s Prison Fellowship International, had penned a Washington Post op-ed announcing that Right on Crime’s new campaign “opens the way for a common-sense left-right agreement on an issue that has kept the parties apart for decades.”21 Nolan spoke at the press conference, as did Grover Norquist. Gingrich could not attend but sent a letter of support.

That evening, PBS Newshour’s Judy Woodruff spoke with Jealous and Norquist, asking Norquist if he agreed that at least some of the money spent on prisons ought to be directed to public education. Norquist hedged, saying, “Well, that’s the NAACP’s study and analysis…I’m in favor of allowing taxpayers to keep the money that’s presently being misspent. But that’s a separate discussion…we can have that conversation another time.”22

That exchange foreshadowed how the bipartisan consensus would unfold. From the beginning, the center-liberal sector aligned with the Right in making a “dollars and sense” argument for reducing mass incarceration, appealing for support on the basis of cost, taxes, and public safety rather than issuing a full-throated call for structural, redistributive justice. That early compromise would have long-lasting effects on the ability of liberals and progressives to push for transformative change. Tax- and cost-based arguments advance austerity politics, which in turn intensify violence and abandonment suffered by the communities that are already most criminalized.

“Prison Industrial Complex” by Natasha Mayers. (Image via Flickr, CC BY-SA 2.0).

Today’s “bipartisan consensus” on criminal justice reform is a brokered set of “strange bedfellows” relationships that emerged over the last decade or so among various think tanks, selected national advocacy organizations, foundations, and other funders. Its work is promoted as a middle way forward that is neither “tough” nor “soft,” but rather “smart” on crime.

Strategic bipartisanship to bridge significant political divides has been a trend within philanthropy and centrist think tanks for at least a decade. It has produced a number of efforts, largely not successful, to bring groups and constituencies together across chasms of ideological difference to find responses to longstanding tensions in such arenas as immigration reform, abortion, and climate change.23When centrist Democrats sought to find common ground with conservative opponents of abortion rights, the results were more restrictions on those rights and less access to services.24

“Liberalism had no power to cut the deal that had to be cut.”

By the time the new wave of bipartisan reform emerged, the country had long since been shifting to the Right. Speaking on condition of anonymity, one highly placed foundation official told me that as it all came together, center­­-liberal partners couldn’t compete with the libertarian-Right’s already well-developed analyses, rhetoric, talking points, policy templates, and political dominance.

“Liberalism had no power to cut the deal that had to be cut,” the official said.25

The result is creation of a series of federal, state, and local coalitions and ever-expanding private-public partnerships that organize, promote, and implement reform agendas.

Major partners and federal-state partnerships helping to shape and implement the “bipartisan consensus” include funders across a broad political spectrum, such as Koch Industries26 and the Laura and John Arnold Foundation on the Right, and the more liberal Ford Foundation, John D. and Catherine T. MacArthur Foundation, and Open Society Foundations. A host of other foundations and donors also support aspects of this work.

With funding from the federal Bureau of Justice Assistance, the Justice Reinvestment Initiative (JRI), a public-private partnership, provides technical assistance to participating states along with a structured process intended to “to improve public safety and control taxpayer costs.”27 In addition to The Pew Charitable Trusts (which funds its own work), technical assistance is provided by the Council of State Governments Justice Center, the Crime and Justice Institute at Community Resources for Justice, The Center for Effective Public Policy, the Urban Institute, and the Vera Institute of Justice.

Open Society Foundations funded the ACLU to create a somewhat different approach to reducing incarceration and reallocating savings, although both models emphasize sentencing reforms.28 In 2014, with major funding support from the ACLU, Californians for Safe Neighborhoods and Schools successfully placed Proposition 47 (the Safe Neighborhoods and Schools Act) on the ballot. With support from the Tides Center, the coalition institutionalized into Californians for Safety and Justice (CSJ), which works to facilitate and expand the Proposition 47 agenda. A sister organization, The Alliance for Safety and Justice, also supported by the Tides Center, was created to advance various reforms in other states.

In 2015, the national Coalition for Public Safety was created with funding from Koch, Arnold, MacArthur, and Ford to serve as a public face for and promote the bipartisan consensus.29 Center-liberal partners include the ACLU, the Center for American Progress, NAACP, and the Leadership Conference Education Fund. In addition to Right on Crime, the libertarian-Right partners include Norquist’s Americans for Tax Reform (which opposes any new taxes and most existing ones), Ralph Reed’s Faith & Freedom Coalition (which mobilizes against LGBTQ rights and recognition and reproductive justice, and for school privatization and removal of church/state barriers), and FreedomWorks (which mobilizes against unions and for so-called “right to work” laws, deregulation, and school privatization). Since its inception, the Coalition for Public Safety (CPS) appears to have focused primarily on genial public relations efforts.30 There has been at least one major internal disagreement within the coalition (see sidebar).

SIDEBAR: The Wolf in Sheep’s Clothing: How the Right Utilizes Criminal Justice Reform to Pursue Broader Goals(click to expand)

For the Right, criminal justice reform sometimes serves as a backdoor means of deregulation and corporate protection, whereby they use the promise of fixing a broken prison system as a means of providing cover for white collar crime. This backdoor is found in three rhetorical frames: “overcriminalization,” “public safety,” and “right-sizing/downsizing government.” Two examples, which are not elements endorsed by the national bipartisan Coalition for Public Safety or liberal coalition partners, illustrate this point. But when the liberal-Left sector does not clearly identify how this rhetoric obscures the possible adverse impacts of reform measures, the Right’s use of it is legitimized.

“Criminal Intent” or Mens Rea Reform

In 2016, the Right sought support for a capstone of its corporate agenda—federal mens rea or “criminal intent” reform—but it stalled. (Mens rea reform is also pursued in some states.[55]) The Obama administration was opposed to it and liberal partners from the Coalition for Public Safety wouldn’t sign on. Framed by the Right as a legal safeguard for the individual rights of the accused and an antidote to federal overreach, it drives an agenda of deregulation and relief for “overcriminalized” corporations and executives. The most zealous supporters include Koch Industries, pursued by the Environmental Protection Agency and indicted in 2000 for serious violations of environmental safeguards at a Texas refinery. (The case was settled in 2001.)56

Mens rea reform mandates that prosecutors fulfill a two-part requirement in order to obtain a federal conviction, proving 1) that the defendant knowingly acted to commit a crime; and 2) that they knew/had reason to believe their action was illegal. The Center for American Progress says this requirement would impede the enforcement of criminal provisions related to food safety, banking, environmental law, and more.57

Geographer and anti-prison activist Ruth Wilson Gilmore points out that environmental justice is one of the last areas where “intent” to break the law doesn’t matter; what matters is that harm was predictable and occurred.58 Certain to be enacted in the Trump era, mens rea reform would, she says, further undermine already-diminishing possibilities for staking collective claims to justice.

While mens rea reform could not go forward with Coalition for Public Safety support, as part of a larger sentencing reform package, it is likely to be passed by a Republican-controlled House and Senate and signed by a Republican president.

States’ Rights

Right on Crime, self-described as the “one-stop source for conservative ideas on criminal justice,” pursued reforms that directly or indirectly serve to consolidate states’ rights by 1) dismantling federal power to regulate businesses and industries in the public interest; 2) limiting federal powers of oversight and intervention into possible state/local police violations of civil rights; 3) eliminating the ability to utilize federal law to advance collective claims to social justice; and 4) transferring the right to prosecute certain crimes from the federal government to the state.59

Sociologist Nancy A. Heitzeg, author of The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards, says that the Right uses elements of the reform agenda to weaken voting rights, attack social programs, and dismantle the federal government’s ability to protect the rights of individuals and communities against abuses in school systems and by law enforcement. “What we’re seeing in ‘bipartisan criminal justice reform’ is how it is usedto continually replay the Civil War on paper in the perpetual undoing of 14th and 15th Amendments, and abolition of slavery in the 13th,” she says.60

Key Reform Elements: Cautionary Notes

A quick look at a few key elements of the 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 & 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

Over 100 Black mothers were bailed out across the country as part of the Black Mama’s Bail Out Action. (Photo courtesy of Southerners on New Ground).

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 U.S., 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.

The Right utilizes every possible issue to advance an ideological agenda and endgame. The Left, by contrast, has no similar endgame in mind.

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 U.S. 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.

Looking Ahead

My argument is the policies that have driven us apart, the policies that have trapped African-Americans in all too large numbers in poverty and in hopelessness [are] the ideological policies that say, “Black lives matter.” -Newt Gingrich, 2016, on Fox and Friends47

Lately funders have been very excited by the possibility of groups aligning with unlikely allies. But to create a powerful front, a front with the capacity to change the landscape, it seems that connecting with likely allies would be a better use of time and trouble. -Ruth Wilson Gilmore, “In the Shadow of the Shadow State”48

The same threats posed by reform that fails to engage structural violence and inequality also identify possible openings for social justice movement base-building and grassroots organizing.

Powerful resistance movements such as Black Lives Matter and #SayHerName have surged in recent years. (Photo courtesy of Fibonacci Blue via Flickr.)

Popular and powerful resistance to the criminalization and deployment of state violence against Black, Latinx, Indigenous, and Muslim peoples, against immigrants and refugees, has surged. Black Lives Matter, #SayHerName, Dream Defenders, the Movement for Black Lives, and the Standing Rock water protectors have inspired progressives. Increasingly, incarcerated and formerly incarcerated people have been organizing to make their voices heard and advance more progressive agendas. Justice advocates should support and help strengthen this work without permitting White people, non-Indigenous people, and people who have never been incarcerated to take it over.

Some campaigns that attract support across the political spectrum, such as money bail reform, are vitally important. But it is also important to question and sometimes challenge “brokered” rhetoric about danger. Conservatives may well want to advance their arguments in fiscal terms, but that doesn’t mean social justice movements should accept without challenge austerity arguments and privatization strategies. Justice should never be for sale. And it is always important to redefine in liberatory ways what constitutes community well-being and safety outside the framework of policing and the criminal justice system.

Where “bipartisan consensus” reforms and framing are problematic and might intensify harm to heavily incarcerated communities, or simply reconfigure it, there is already significant organizing work underway that suggests better approaches to transformation are possible. Harm reduction efforts are critical to support and advocate for people who are incarcerated and under community supervision. One useful strategy to dismantle the prison industrial complex and develop youth leadership, writes anti-violence writer and educator Mariame Kaba, “is participatory defense campaigns. These are grassroots efforts to pressure authorities, attend to prisoner needs, and raise awareness and funds.”49 Kaba emphasizes the importance of placing this work in an abolitionist context that doesn’t concede the inevitability of prisons. There is no “one-size-fits-all” answer to whether or how we might engage reform efforts, but Kaba proposes this essential guideline: “[A]ll of the ‘reforms’ that focus on strengthening the police or ‘morphing’ policing into something more invisible but still as deadly should be opposed.”50

States and counties remain the primary arenas for bipartisan reform campaigns and initiatives. It will be up to grassroots social justice organizations in those locales to decide if or how to engage them. The work of Women With a Vision (WWAV) in New Orleans provides one example of principled engagement that simultaneously serves immediate needs while advancing long-range justice goals. With a long history of community organizing led by Black women, the organization took on issues of racial bias and lack of transparency in the district attorney’s diversion program. The result was the co-creation of Crossroads, a radically better diversion program for women facing drug and prostitution charges.51

Poster created with the Audre Lorde Project, which promotes models of safety outside of the prison industrial complex. (Courtesy of the artist, Micah Bazant).

Lastly, we must lift issues of law enforcement violence and mass incarceration out of the stranglehold of a single-issue framework in order to see them in a larger, even global, context. It is essential to develop structural analyses that make clear the complex and interrelated drivers of race-, class-, gender-, and disability-based policing and mass incarceration. The analysis must be centered in the experiences and insights of the communities most affected, not produced by elites. Rather than settling for the trade-off, this work invites justice advocates to begin articulating an endgame that consciously connects work on protection, solidarity, sanctuary, mutual aid, and environmental protection with long-term, cross-movement strategies for liberation.

Examples of how to engage this task abound. In 1962, the Student Nonviolent Coordinating Committee (SNCC), whose members did some of the riskiest organizing and outreach work of the Civil Rights movement in the Deep South, created a Research Department. Designed to help strengthen field organizing, its resources included an expansive documentary archive and power analysis that illuminated the specific civic and economic structures supporting segregation.52

Present day examples include the Movement for Black Lives platform and the Southern Movement Blueprint: A Plan of Action in a Time of Crisis, a synthesis of analysis from communities throughout the region to help build a powerful, progressive Southern infrastructure for change connected, across movements, by common principles, values, and work.53

Ruth Wilson Gilmore, an anti-prison activist and author of Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California, argues that this step is critical in order to break through narrow thinking, connect local realities to international movements for justice, and organize more effectively. “The problem with a good deal of analysis about what is happening everywhere,” she told me, “is that it is constricted by the obscuring thickness of neoliberalism and globalization. That is, the ideology and rhetoric of neoliberalism has blanketed the earth at the same time that globalization is blanketing the world with war and super-exploitation to keep capitalism going.” Even justice movements can unwittingly come to accept an austerity mindset. She encourages activists to think about austerity politics and the push for privatization beyond the frame of greed and corruption in order to more effectively understand, resist, and offer alternatives to its profoundly desocializing impacts.54

We can start by changing the way we think about, discuss, and depict the devastation of the prison industrial complex. Although it wasn’t as widely covered as 13th, 2016 also saw the release of another documentary: Brett Story’s The Prison in 12 Landscapes. Story’s film transports us into a variety of rural and urban geographies—New York City and rural Kentucky, Detroit and Ferguson, Marin County, California and beyond—in order to glimpse the long, racialized, and economically violent impact of the U.S. prison system. The film offers a quiet but deeply unsettling look at the framework of the civil society we have created, seen through the refracted light of the prison and the expansive systems of carceral control it generates, and all without seeing a single prison until the last, lingering shot.

And, in a way, that’s the point. Reforms that leave so much injustice and violence intact and unchallenged will ultimately continue to lead U.S. society to that prison and all of its shadow manifestations. Long-term, collective strategies of social and economic transformation, by contrast, can take us through changing landscapes, step by determined step, and lead us toward the day that there will be no prison at journey’s end.

Endnotes

1 Dan Berger, “Lessons in Law and Order Politics,” African American Intellectual History Society, August 9, 2016, http://www.aaihs.org/lessons-in-law-and-order-politics/.

2 Newt Gingrich, “On Terrorism it’s Time to Know, to Profile, and to Discriminate,” HumanEvents.com, December 30, 2009, http://humanevents.com/2009/12/30/on-terrorism-its-time-to-know-to-profile-and-to-discriminate/.

3 Michael Scherer, “Grover Norquist: The Soul of the New Machine,” Mother Jones, January/February 2004, http://www.motherjones.com/politics/2004/01/grover-norquist-soul-new-machine.

4 For a useful introduction to neoliberalism and austerity, see Jean Hardisty, “The Gloves are Off for the Right’s Chamber of Commerce Wing,” The Public Eye, Fall, 2014, Political Research Associates, https://www.politicalresearch.org/2014/10/07/from-the-new-right-to-neoliberalism-the-threat-to-democracy-has-grown/.

5 Peter Wagner and Bernadette Rabuy, “Mass Incarceration: The Whole Pie 2017,” March 14, 2017, Prison Policy Initiative, https://www.prisonpolicy.org/reports/pie2017.html.

6 Peter Wagner, “Are Private Prisons Driving Mass Incarceration?” Prison Policy Initiative, October 7, 2015, https://www.prisonpolicy.org/blog/2015/10/07/private_prisons_parasite/.

7 Danielle Kaeble and Thomas P. Bonczar, “Probation and Parole in the United States, 2015,” Bureau of Justice Statistics, December 21, 2016, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5784.

8 Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011). See also L. Ben-Moshe, C. Chapman, and A. Carey (eds.), Disability Incarcerated: Imprisonment and Disability in the United States and Canada (New York: Palgrave Macmillan US, 2014).

9 David Jaros, “Flawed Coalitions and the Politics of Crime,” 99 Iowa L. Rev. 1473 (2014): 1473-1475.

10 Marvin D. Free, Jr., “The Impact of Federal Sentencing Reforms on African Americans,” Journal of Black Studies, Vol. 28, No. 2 (Nov., 1997): 268-286.

11 Angela Y. Davis, Freedom is a Constant Struggle: Ferguson, Palestine, and the Foundations of a Movement (Chicago: Haymarket Books, 2016), 22.

12 Kathryn Edin and H. Luke Shaefer, “20 Years Since ‘Welfare Reform’,” The Atlantic, August 22, 2016, https://www.theatlantic.com/business/archive/2016/08/20-years-welfare-reform/496730/. See also “Welfare Reform in Texas Has Not Worked, According to University of Texas at Austin Researchers,” UT News, The University of Texas at Austin, January 29, 2008, https://news.utexas.edu/2008/01/29/social_work_welfare. See also Joshua Holland, “How Bill Clinton’s Welfare ‘Reform’ Created a System Rife with Racial Biases,” Moyers & Company, May 12, 2014, http://billmoyers.com/2014/05/12/how-bill-clintons-welfare-reform-created-a-system-rife-with-racial-biases/.

13 Governor’s Advisory Task Force on Faith-Based Community Service Groups, Faith in Action: A New Vision for Church-State Cooperation in Texas, December 1996, https://www.scribd.com/document/249455442/Texas-Faith-in-Action-1996-pdf.

14 Tanya Erzen, God in Captivity: The Rise of Faith-Based Prison Ministries in the Age of Mass Incarceration (Boston: Beacon Press, 2017).

15 Texas Freedom Network Education Fund, “The Texas Faith-Based Initiative at Five Years: Warning Signs as President Bush Expands Texas-style Program at National Level,” 2002, http:tfn.org/cms/assets/uploads/2016/01/TFN_CC_REPORT-FINAL1.pdf (cached).

16 Forrest Wilder, “Revealed: The Corporations and Billionaires that Fund the Texas Public Policy Foundation,” August 24, 2012, Texas Observer, https://www.texasobserver.org/revealed-the-corporations-and-billionaires-that-fund-the-texas-public-policy-foundation/.

17 “The Conservative Case for Reform,” Right on Crime, http://rightoncrime.com/the-conservative-case-for-reform/. See also “Right on Crime Signatories,” Right on Crime, http://rightoncrime.com/right-on-crime-signatories/.

18 Susan B. Tucker and Eric Cadora, “Justice Reinvestment,” Ideas for an Open Society, Open Society Institute, Vol. 3, No. 3, November, 2003.

19 JFA Institute, American Civil Liberties Union, The Sentencing Project, et. al, Ending Mass Incarceration: Charting a New Justice Reinvestment, April 17, 2013, 6. Available online: https://www.aclu.org/ending-mass-incarceration-charting-new-justice-reinvestment.

20 National Association for the Advancement of Colored People, Misplaced Priorities: Over Incarcerate, Under Educate, (Baltimore: NAACP, 2011). The press conference is on YouTube: https://www.youtube.com/watch?v=46X8ClRmDvg.

21 Newt Gingrich and Pat Nolan, “Prison Reform: A Smart Way for States to Save Money and Lives,” Washington Post, January 7, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/01/06/AR2011010604386.html.

22 “NAACP Report Says Shift in Funding Toward Prisons ‘Failing Us,’” April 7, 2011, PBS Newshour website at http://www.pbs.org/newshour/bb/social_issues-jan-june11-incarceration_04-07/.

23 “Spring 2011 Policy Update,” Grantmakers Concerned with Immigrants and Refugees, 2011,https://www.gcir.org/publications/gcirpubs/2011_policy_update. See also Mark Gunther, “Round Up the Usual Suspects: The MacArthur Foundation’s Big Climate Bet,” Medium, September 2, 2015, https://medium.com/@marcgunther/the-usual-suspects-the-macarthur-foundation-s-big-climate-bet-c3a2327fc23d.

24Frederick Clarkson, “Anti-Abortion Strategy in the Age of Obama,” Political Research Associates, December 1, 2009, https://www.politicalresearch.org/2009/12/01/anti-abortion-strategy-in-the-age-of-obama-2/.

25 Telephone interview with foundation official, October 19, 2016.

26 The Center for Media and Democracy, “Koch Criminal Justice Reform Trojan Horse: Special Report on Reentry and Following the Money,” PRWatch, June 16, 2016, http://www.prwatch.org/news/2016/06/13115/koch-criminal-justice-reform-report-reentry-follow-money.

27 Public Performance Safety Project, “33 States Reform Criminal Justice Policies Through Justice Reinvestment,” The Pew Charitable Trusts, November 16, 2016, http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/11/33-states-reform-criminal-justice-policies-through-justice-reinvestment.

28 American Civil Liberties Union, “ACLU Awarded $50 Million by Open Society Foundations to End Mass Incarceration,” November 7, 2014, https://www.aclu.org/news/aclu-awarded-50-million-open-society-foundations-end-mass-incarceration.

29 The Coalition for Public Safety, “Leading Conservative, Progressive Groups Join Forces to Launch Nation’s Largest Coalition Aimed at Comprehensive Criminal Justice Reform,” PR Newswire, February 19, 2015, http://www.prnewswire.com/news-releases/leading-conservative-progressive-groups-join-forces-to-launch-nations-largest-coalition-aimed-at-comprehensive-criminal-justice-reform-300038422.html.

30 In September 2016, I requested an interview with executive director Steven Hawkins, who agreed, and I submitted questions in advance. Shortly before the (twice confirmed) interview was to take place, a public relations executive with a firm that helped create the branding for CPS informed me by email that Hawkins’ schedule had changed and the interview was cancelled. Despite my request to reschedule, I did not hear from CPS again.

31 Mississippi NAACP, “Prison Reform Bill’s Effectiveness Questioned,” April 3, 2014, http://naacpms.org/prison-reform-bills-effectiveness-questioned/.

32 “Sentencing Reform and Corrections Act of 2015 (S. 2123),” Families Against Mandatory Minimums, http://famm.org/sentencing-reform-and-corrections-act-of-2015/.

33 Bernadette Rabuy and Peter Wagner, “Correctional Control: Incarceration and Supervision by State,” June 1, 2016 https://www.prisonpolicy.org/reports/50statepie.html

34 No Entry: A National Survey of Criminal Justice Diversion Programs and Initiatives, Center for Health and Justice Alternatives at TASC, December 2013, http://www2.centerforhealthandjustice.org/content/pub/no-entry-national-survey-criminal-justice-diversion-programs-and-initiatives

35“Problem-Solving Courts,” Treatment Alternatives for Safe Communities, http://www2.tasc.org/program/problem-solving-courts

36 Donna Murch, “Paying for Punishment: The New Debtors’ Prison,” Boston Review, August 1, 2016. See also Cate Graziani, Liat Ben-Moshe & Haile Eshe Cole, Beyond Alternatives to Incarceration and Confinement, Grassroots Leadership, April 2017 http://grassrootsleadership.org/blog/2017/04/grassroots-leaderships-latest-publication-lays-groundwork-new-program-area

37 JFA Institute, American Civil Liberties Union, et. al., Ending Mass Incarceration, 3–5.

38 Kay Whitlock, “Community Corrections: Profiteering, Corruption, and Widening the Net,” Truthout, November 20, 2014, http://www.truth-out.org/opinion/item/27555-community-corrections-profiteering-corruption-and-widening-the-net. See also American Friends Service Committee, Grassroots Leadership, and Southern Center for Human Rights, Treatment Industrial Complex: How For-Profit Prison Corporations are Undermining Efforts to Treat and Rehabilitate Prisoners for Corporate Gain, November 17, 2014, https://www.afsc.org/document/treatment-industrial-complex-how-profit-prison-corporations-are-undermining-efforts-treat-a.

39 Nick Wing, “How a State Bail Reform Measure Lost the Support of Bail Reformers,” Huffington Post, October 31, 2016, http://www.huffingtonpost.com/entry/new-mexico-bail-reform_us_580a7885e4b0cdea3d8784e5.

40 The Movement for Black Lives, Color of Change, Law for Black Lives, Brooklyn Community Bail Fund, Project NIA, and Southerners on New Ground (SONG), Transformative Bail Reform: A Popular Education Curriculum, March 1, 2017, https://policy.m4bl.org/wp-content/uploads/2016/07/Transformative-Bail-Reform-5.pdf.

41 Samantha Harvell, Jeremy Welsh-Loveman, and Hanna Love, et. al., Reforming Sentencing and Corrections Policy: The Experience of Justice Reinvestment Initiative States, Urban Institute, December 19, 2016, http://www.urban.org/research/publication/reforming-sentencing-and-corrections-policy. See also JFA Institute, American Civil Liberties Union, et. al., Ending Mass Incarceration, 1–4.

42 Editorial Board, “Proposition 47: A Failure to Learn History’s Lesson,” The Sacramento Bee, December 22, 2016, http://www.sacbee.com/opinion/editorials/article122675524.html.

43 “Invest-Divest,” The Movement for Black Lives, https://policy.m4bl.org/invest-divest/.

44 Marjorie Cohn, “Jeff Sessions’ Department of Injustice,” Truthout, May 4, 2017, http://www.truth-out.org/news/item/40455-jeff-sessions-department-of-injustice.

45Adam Gabbatt, “Anti-Protest Bills Would ‘Attack Right to Speak Out’ Under Donald Trump,” The Guardian, May 8, 2017, https://www.theguardian.com/world/2017/may/08/donald-trump-anti-protest-bills.

46 Frederick Douglass, “Address of Hon. Fred. Douglass” (address, National Convention of Colored Men, Louisville, KY, September 24, 1883). Online at: http://coloredconventions.org/items/show/554.

47 Aaron Rupar, “Newt Gingrich Suddenly Acknowledges Structural Racism. Here’s Why It’s Hard to Take Him Seriously,” ThinkProgress, July 8, 2016, https://thinkprogress.org/newt-gingrich-suddenly-acknowledges-structural-racism-heres-why-it-s-hard-to-take-him-seriously-4a630483d1d#.r7idxojl4.

48 Ruth Wilson Gilmore, “In the Shadow of the Shadow State,” in The Revolution Will Not be Funded, ed. INCITE! Women of Color Against Violence (Boston: South End Press, 2009). Reprinted with permission by The Scholar and Feminist Online: http://sfonline.barnard.edu/navigating-neoliberalism-in-the-academy-nonprofits-and-beyond/ruth-wilson-gilmore-in-the-shadow-of-the-shadow-state/.

49 Mariame Kaba, “Free Us All: Participatory Defense Campaigns as Abolitionist Organizing,” The New Inquiry, May 8, 2017, https://thenewinquiry.com/free-us-all/.

50 Mariame Kaba, “Police ‘Reforms’ You Should Always Oppose,” Truthout, December 7, 2014, http://www.truth-out.org/opinion/item/27852-police-reforms-you-should-always-oppose.

51 Zenobia Jeffries, “What It Takes to Get Women Out of Prison – and Stay Out,” Yes! Magazine, Winter 2017, http://www.yesmagazine.org/issues/50-solutions/what-it-takes-to-get-women-out-of-prison-and-stay-out-20160112.

52 Derek Seidman, “The Hidden History of the SNCC Research Department,” Eyes on the Ties, May 2, 2017, https://news.littlesis.org/2017/05/02/the-hidden-history-of-the-sncc-research-department/.

53 “Platform,” Movement for Black Lives, https://policy.m4bl.org/platform/. “Southern Movement Blueprint: A Plan of Action in a Time of Crisis,” South Movement Assembly, http://southtosouth.org/.

54 Ruth Wilson Gilmore, telephone interview with author, October 7, 2016.

55 “In Support of Mens Rea Protections in Ohio,” http://rightoncrime.com/2014/12/reddy-in-support-of-mens-rea-protections-in-ohio/

56 Rena Steinzor, “Dangerous Bedfellows” op cit. The Stalemate on Criminal Justice Reform,” American Prospect, May 11, 2016 http://prospect.org/article/dangerous-bedfellows

57 Greg Dotson and Alison Cassady, “Three Ways Congressional Mens Rea Proposals Could Allow White Collar Criminals to Escape Prosecution,” March 11, 2016, Center for American Progress, https://www.americanprogress.org/issues/criminal-justice/reports/2016/03/11/133113/three-ways-congressional-mens-rea-proposals-could-allow-white-collar-criminals-to-escape-prosecution/.

58 Ruth Wilson Gilmore, telephone conversation with author, October 7, 2016.

59 “Overcriminalization,” Right on Crime, http://rightoncrime.com/category/priority-issues/overcriminalization/. See also Michael Haugen, “Randy Petersen on ‘The Lars Larson Show’: Policing Is A “Uniquely Local” Idea,” January 18, 2017, Right o Crime http://rightoncrime.com/2017/01/randy-petersen-on-the-lars-larson-show-policing-is-a-uniquely-local-idea/http://rightoncrime.com/2017/01/randy-petersen-on-the-lars-larson-show-policing-is-a-uniquely-local-idea/.

60 Nancy A. Heitzeg, email conversation with author, May 9, 2017

Kay Whitlock is a writer and activist whose work focuses on challenging structural forms of violence, particularly in public systems. She is coauthor of Considering Hate: Violence, Goodness, and Justice in American Culture and Politics with Michael Bronski and Queer (In)Justice: The Criminalization of LGBT People in the United States with Joey L. Mogul and Andrea J. Ritchie. A prison abolitionist, she lives in Missoula, Montana.