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CAPTIVE MARKET
Why we won’t get prison reform
By Michael Ames
I
t’s possible that
Michael Dukakis
didn’t understand
the question.
“If Kitty Dukakis
were raped a nd
murdered,” CNN
a nchor B er na rd
Shaw asked the
Democratic candidate on live national television near
the start of the second 1988 presidential debate, “would
you favor an irrevocable death penalty
for the killer?”
What Dukakis
could not have known at the time,
amid the lights and the electric
hum, was that the whole doomed
history of the American left had
quite suddenly come to rest on his
answer. His rote reply—“No, I don’t,
Bernard . . . ”—marked the end of
more than just Dukakis’s own career. The response seemed to confirm the suspicions at the heart of
arguably the most devastating attack ad in presidential-campaign
history: George H. W. Bush’s Willie
Horton spot. The parable that
emerged in 1988—liberal politician
goes soft on crime, black criminal
Michael Ames’s last article for Harper’s
Magazine, “The Awakening,” appeared in
the April 2013 issue.
34    HARPER’S MAGAZINE / FEBRUARY 2015
goes on violent rampage, liberal politician loses election—quickly hardened into political truism. For Dukakis’s woebegone party, loser of
three straight national elections, his
strategic failure was what our current Democratic president might
call a “teachable moment.”
Four years later, Bill Clinton, who
was then the governor of Arkansas,
pointedly flew home to Little Rock in
the middle of his own presidential
campaign to oversee the execution of
a man named Ricky Ray Rector. There
was no doubt that Rector was a killer.
But he was also handicapped—
lobotomized by his own botched
suicide—and there were profound legal and moral questions about execut-
ing a man who
possessed the
awareness of a dim
young child. The
case had dragged
on for more than a
decade, and in
Rector’s final days,
Clinton heard pleas
from various Democratic stalwarts,
including one of
the candidates from
1988, Jesse Jackson,
to commute the
sentence and simply leave the diminished man in jail
for life. But Clinton did not budge. His fortitude suggested a new breed: a Democrat who
was more intent on winning elections than upholding bygone virtues,
and who was willing to make the
necessary corrections. As president,
Clinton followed through on this
promise: his crime agenda, the New
York Times wrote in 1996, gave him
“conservative credentials and threatened the Republicans’ lock
on law and order.”
I
n the late Eighties and early Nineties, violent crime was unrelenting.
For rich and poor alike, life in America’s big cities was marred by unprecedented numbers of murders, rapes,
assaults, and robberies. Crime was a
Illustration by Taylor Callery
top voter concern, and a sizable majority of Americans supported the death
penalty. Given the realities of the day,
some Democratic posturing was unavoidable. But Clinton and his party
stuck to the hard line through the
mid-Nineties, even after crime rates
began their dramatic decline. The
1994 Violent Crime Control and Law
Enforcement Act—authored by Joe
Biden, then chairman of the Senate
Judiciary Committee—was one of the
broadest expansions of the criminaljustice system in national history. “One
of my objectives, quite frankly,” Biden
said, “is to lock Willie Horton up in
jail.” The bill devoted nearly $10 billion
to new prisons, instituted a federal
“three strikes, you’re out” rule, and created sixty new capital crimes and more
than half a dozen new mandatory minimum sentences.1 It imposed mandatory drug testing on parolees, ended
Pell-grant eligibility for prisoners—and
with it most inmate-education funding—and established the Community
Oriented Policing Services (COPS)
program, which by 1996 was funneling
nearly $1.5 billion per year to police
departments nationwide.
Today, the crime epidemic is a
cultural relic, no less a throwback
than The Bonfire of the Vanities,
crack babies, and the Willie Horton
ad itself. Fear of random violence
lives on, but the reality is that
violent-crime rates have dropped to
levels not seen since the early Seventies. Some criminologists and politicians, Biden chief among them, argue that our newfound safety is the
logical outcome of harsher laws and
increased spending on law enforcement. But that point is debatable—
at the state level there has been little
correlation between crime reduction
and changes in incarceration rates.
Whether we credit society’s better
behavior to the legacy of Clinton-era
policies or to the spiritual evolution
of the species, the paradigm has
shifted dramatically. Today’s urgent
social problems no longer center on
criminals and the depravity of their
crimes, but on police, courts, prisons, and the system’s routine abuses
1
Clinton would later champion a “one
strike, you’re out” policy to keep criminals,
including drug users, out of public housing.
of power. We traded grim murder,
rape, and assault statistics for asset
forfeiture, police militarization, and
mass incarceration.
However often cited, the numbers
bear repeating. The United States
currently holds about 2.3 million
men, women, and children inside secure concrete and metal boxes from
which they will almost certainly not
escape. Our nation is exceptional in
this way, with incarceration rates
that far surpass those in Russia, Iran,
or any other country on earth. One
in twenty-eight American children
has a parent in jail. African Americans have for decades been arrested
for narcotics at more than three
times the rate of white Americans,
despite using drugs at roughly the
same rate. There are more black
men in the prison system right now
then there were male slaves in the
antebellum South. Counting parolees and probationers, the corrections system controls the lives of
nearly 7 million people. Half of all
federal inmates are in prison for drug
offenses, and post-9/11 immigration
roundups have provided a new human-inventory stream. Between
2001 and 2011, the number of detainees held each year by Immigration and Customs Enforcement
(ICE) more than doubled—from
209,000 to at least 429,000—making
foreign migrants one of the largest
demographics in federal custody.
The feeling that we overcorrected,
that it isn’t the drugs or the crime but
the efforts to defeat them that now
cause the greatest social harm, is widely held across the political spectrum.
It is repeated in a streaming harmony
of newspaper columns, blog posts, radio shows, academic symposia, documentary films, and casual conversations. The shooting of Michael Brown,
an unarmed teenager, by police officer
Darren Wilson in Ferguson, Missouri,
last summer and the months of civil
unrest it sparked focused the country’s
attention on the new dynamic. The
militarization of our police and the
institutionalized exploitation of black
and poor people was suddenly crystallized in the image of small-town cops
facing down their own community
with sniper rifles and mine-resistant
armored vehicles. In New York City,
where violent-crime rates are approaching the lowest levels on record,
an officer was caught on tape choking
Eric Garner while attempting to arrest
him for selling loose cigarettes. Garner, who died an hour later, can be
heard on the recording saying, “I can’t
breathe.” In the span of nine days,
grand juries in St. Louis and Staten
Island declined to indict
the officers in both cases.
W
ith the election of Barack
Obama as the country’s first AfricanAmerican president—and his appointment of Eric Holder, the first
African-­American attorney general—
liberals might have expected a frank
reappraisal of the policies that have
devastated generations of minority
Americans. Instead, they’re stuck
with a party that still isn’t ready to
get over Willie Horton. In the weeks
after the grand-jury decisions, most
prominent Democrats played it safe.
Obama struck the necessary presidential notes, but he made no significant
policy suggestions. This failure is
particularly difficult to understand if
one accepts the established story line:
that the Democratic lurch to the right
on criminal justice was driven by mere
electoral expediency. It would be one
thing—shameful in its own way, but
at least explicable—if criminaljustice reform were too politically
radical for the average voter. But the
excesses of mass incarceration have
become so apparent that there is little
risk in speaking out against them. At
the start of Obama’s second term,
Holder stepped forward as one of the
chief critics of the very system he oversaw. He made criminal-justice reform
a signature cause and issued a stream
of public critiques and Department of
Justice memos that called on prosecutors to argue for shorter sentences and
encouraged thousands of federal inmates convicted of nonviolent crimes
to appeal for commutation. Holder’s
words carried political freight, and
news headlines heralded the dawn of
a reformist era. But executive memos
are non-binding. The drug war wages
on, and the laws that put petty offenders in prison for twenty years
remain unchanged.
As we enter the final quarter of the
Obama presidency, neither the White
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House nor the Democratic Party has
backed comprehensive reform.2 The
party’s 2012 platform cited the ongoing need to “combat and prevent
drug crime” and called for increased
funding for the Byrne Justice Assistance Grant Program, a main source
of funding for prosecuting drug
crimes. It made no mention of
criminal-justice reform. These facts
raise a troubling question: if the New
Democratic tough-on-crime attitude
was entirely a matter of cynical,
short-term tactics—merely the first
and best Clintonian triangulation—
why has it proved so difficult to
undo? More to the point, how is it
possible that libertarian conservatives like Kentucky senator Rand
Paul have captured the moral high
ground on the issue, while establishment Democrats seem content
to hold the empty bag of a status
quo that is not merely unjust but
also, for a party that counts on the
support of minority votes,
politically untenable?
L
ast spring, I traveled to Washington, D.C., to seek out politicians of either party who would speak on the record about criminal-justice reform.
Rand Paul was the highest-ranking official who wanted to talk. Paul has introduced five pieces of reform legislation
in the Senate in the past two years,
which addressed issues ranging from
felon voting rights to civil asset forfeiture. He also signed on to three other
bills, making him the only member of
any party to attach his name to all
eight. In his effort to make prison reform a Washington priority, Paul has
rounded up an ideologically diverse
coalition that includes several young
conservative Republican lawmakers, all
loosely affiliated with the Tea Party, and
2
Two bills that passed in recent years made
incremental reforms. The 2008 Second
Chance Act, a faith-based initiative signed
by President Bush, aimed at reducing
recidivism and releasing some elderly
prisoners convicted of nonviolent crimes.
Of the roughly 850 federal inmates who
applied for clemency under the law,
seventy-one were let out and sentenced to
house confinement. The Fair Sentencing
Act, passed by a unanimous Senate vote
and signed by Obama in 2010, reduced but
did not eliminate the disparity between
crack-rock and powder-cocaine sentences.
800-324-4934 davidmorgan.com
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36
HARPER’S MAGAZINE / FEBRUARY 2015
Cory Booker, the young Democratic
senator from New Jersey. When he
speaks about the issue, Paul often refers
to Michelle Alexander’s book The New
Jim Crow (2010), the bible of reformists
on the left, which argues that racial
disparities in the corrections system are
a form of state-sanctioned oppression
that follow directly from segregation
and slavery.
“I think Eric Holder is sincerely for
[reform],” Paul told me in an antechamber of his Senate office last year.3
“I’ve had lunch with him, and I think
he sincerely does favor these bills. I
think the president does as well.” But
even the most popular reform measures remain stalled in the Senate’s
purgatory. “The height of irony,” Paul
said, “the epitome of what’s wrong
with this place, is even when we agree,
we can’t pass anything.”
Paul isn’t the first independently
minded lawmaker to run into this
roadblock. Jim Webb, a Democrat from
Virginia—and now a member of this
magazine’s board—devoted much of
his single Senate term, which ended in
2013, to his National Criminal Justice
Commission Act, which would have
named a bipartisan commission to
study the issue and make recommendations. The Obama White House never
endorsed the bill, and in 2011 the
N.C.J.C.A. failed to pass the Senate by
three votes. Auditing the nation’s
criminal-justice system, Republican
Kay Bailey Hutchison said, was “not a
priority in these tight-budget times.”
“Washington is dysfunctional, you
may have heard,” Paul said with a grin.
His conference room had the justmoved-in feel of a campaign office
with more important things to worry
about than décor. High on the wall,
two oil-on-canvas portraits, one of
Loretta Lynch, the U.S. attorney for the
Eastern District of New York, who, at the
time this article went to press, was expected
to replace Holder as attorney general,
would be the first African-American
woman to hold the position. Lynch has
spoken out against racial disparities in the
corrections system, but she has also been
questioned about her reported affinity for
civil-forfeiture laws, which allow law
enforcement to seize money and property
from private individuals. In November, the
Wall Street Journal described her Brooklyn
office as “a major forfeiture operation” that
raked in “$113 million in civil actions from
123 cases between 2011 and 2013.”
3
Paul and one of his father, Ron Paul,
the former Texas congressman, smile
at each other. The paintings are unframed, too small for the wall they
hang on. Each is unfinished, left by
the artist with swatches of raw canvas
showing through the places where the
politicians’ jackets should be.
To the dismay of many Republicans
and Democrats, Paul has spent a year
leading the polls for the G.O.P. presidential nomination. Early in his rise,
after he united liberals and libertarians with a thirteen-hour filibuster
against the Obama Administration’s
drone program, many Republican elders regarded him as a passing fad. But
as the reality of his staying power set
in, and after he announced the formation of what appears to be a serious
fifty-state campaign, a neat symmetry
emerged from Washington’s center.
Democrats call him crazy, a creature
from the right wing’s lunatic fringe,
while hawkish Republicans use the
reverse tactic, painting Paul as an impostor and a dangerous liberal mole.
That strategy may prove effective, and
on some issues, namely the re-reescalation of the war in Iraq, the attacks have caused Paul to vacillate.
But on criminal justice he has remained consistent.
In picking up where Webb stalled,
Paul has brought several conservatives
along with him. “It’s not about whether or not we’re going to be tough on
crime,” Utah senator Mike Lee told
the Salt Lake Tribune. “It’s first and
foremost about restoring justice to our
justice system.” Idaho congressman
Raúl Labrador, an unofficial leader of
the rebel faction of House Republicans
and a coauthor of the House’s version
of the Smarter Sentencing Act—the
more limited of the two mandatoryminimum reform bills introduced last
year—frames the issue in terms of basic American values: “The Founding
Fathers did not want states to have an
easy job putting people in prison for a
long time,” he told me.
These dissident Republicans have
mounted an organized, three-pronged
critique of the system’s failings: fiscal
(prisons are too expensive), religious
(criminals deserve forgiveness), and
libertarian (the system is an authoritarian nightmare). Left–right coalitions have been passing criminal-
justice reforms in red states for more
than a decade, but Texas is the conservatives’ shining example. In the midNineties, the state led the country in
per capita incarceration, but in 2007,
as Governor Rick Perry and the
Republican-controlled statehouse were
facing $2 billion in prison-construction
and operating costs, they passed more
than a dozen reforms that saved money
and shrank prison rolls. The state shut
down three juvenile-detention centers,
cut the youth prison population by
53 percent, and allocated $241 million
to alternative drug-treatment programs. Crime rates in Texas are at
their lowest levels since 1968.
For Republicans in Washington,
Texas offered more than an example
of good policy; it offered political cover with conservatives. “If these ideas
had been thought up in Vermont,
they wouldn’t go anywhere,” Grover
Norquist, the antitax activist, told
me. Norquist helped found an informal Washington reform group that
included David Keene, a former
chairman of the American Conservative Union and later a president of
the NRA; Edwin Meese, an attorney
general under Ronald Reagan; and
Pat Nolan, a former G.O.P. leader of
the California State Assembly and
the vice president of Prison Fellowship, the prison ministry founded by
Nixon aide Chuck Colson after his
Watergate-related incarceration. Republicans voting in lockstep may
have defeated Webb’s bill, but Paul’s
anti-establishment coterie sees an opportunity in the vacuum left by the
Democratic Party’s passivity. “Our
movement is showing that prisons, after all, are just another bureaucracy,”
Nolan told me.
“Society is changing,” Paul said. “I
think almost everybody, from Christian evangelicals to the far left, believe
that people deserve a second chance
and that putting people in jail for a decade for smoking pot or selling pot is
not the appropriate penalty.”
The polls back him up, but polls
don’t move legislation. Last month,
Iowa Republican Chuck Grassley replaced the congressional reform movement’s most powerful ally, Vermont
Democrat Patrick Leahy, as the chairman of the Senate Judiciary Committee. In a May speech on the Senate
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created new twenty-year minimum
sentences for purveyors of synthetic
drugs. When Paul didn’t budge,
Schumer’s office worked the press.
“The grieving mother of a teenager
who was killed after smoking synthetic
marijuana is filled with fury at the lone
U.S. senator blocking a ban on the
dangerous drug,” the New York Daily
News reported. “[Paul’s] got blood on
his hands,” the Aurora, Illinois, woman told the tabloid. “It would be good
to ask [Schumer] directly and get him
on the record” about mandatory minimums, Paul told me. Schumer’s office
did not respond to several invitations
to discuss prison reform.
As I wandered the capital, speaking to a seemingly endless parade of
reform-minded conservative Republicans an …
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