Updated: Apr 29, 2020
Originally posted on Medium.com by Adam M Lowenstein. Posted with Author's Permission
The bipartisan criminal justice reform bill that passed the Senate Judiciary Committee last month is smart, fiscally responsible, and compassionate. It would reduce federal mandatory minimums, create new programs to fight recidivism, and give judges additional discretion in sentencing. Passage would also send a powerful signal that racially-motivated “law and order” politics can be defeated.
But we should harbor no illusions about either the scale of America’s incarceration epidemic or the ease of fighting it. True reform of the criminal justice system in the United States takes far more than gradual public policy victories. It requires considering more than incarceration’s high fiscal and moral costs and its low impact on public safety. It requires building a broader coalition of support than the left-libertarian alliance that has rightly identified a systemic abuse of the government’s power to detain.
True reform requires a fundamental shift in how Americans view one another, from a perspective strictly of punishment and vengeance to one that also allows room for redemption.
Forgiveness is the most urgent, and the most difficult, criminal justice reform. It must be offered, in the form of rehabilitation, and sought, in the form of reconciliation.
Tackling mass incarceration requires embedding an inclination to forgive in our discourse and our laws. The long journey of the Senate reform bill shows why the challenge of confronting America’s incarceration epidemic is so daunting.
Despite the bill’s broad bipartisan support and its narrow scope, it still hasn’t received a vote by the full Senate. And even if it did, it would only transform a sliver of an over-incarcerated nation. The bill’s reforms are welcome and overdue, but they would almost entirely target low-level, nonviolent drug offenders. That’s not enough.
At its most elemental, the rationale for looking beyond this subset of convictions is one of math. State and federal prisons in the United States currently house more than two million inmates who represent 20 percent of the world’s prison population. That doesn’t include the 4.5 million Americans either on parole or probation. Nor does it include their families or their communities.
Human beings — let alone state and federal law enforcement — don’t have a surefire way of defining and differentiating violent and nonviolent offenders. But even if we did, as Ta-Nehisi Coates wrote in The Atlantic in 2015, focusing only on those who society has deemed least offensive isn’t sufficient to bring U.S. incarceration rates in line with similarly developed countries.
As Coates put it, citing a 2012 analysis showing that more than half of state prison inmates have been convicted of violent crimes, “the popular notion that this can largely be accomplished by releasing nonviolent drug offenders is false.” Even if every state and federal drug offender were immediately released, as a 2015 review of prison data by FiveThirtyEight found, the United States would still have the highest incarceration rate in the world.
We can make significant reductions in that rate with some straightforward reforms: arresting and convicting fewer people, eliminating overly punitive sentencing laws, reducing the sentences of those already convicted, and making reoffending and recidivism as unlikely as possible by eliminating government-imposed barriers to rehabilitation.
That final step means automatically restoring fundamental rights — of voting, of serving on a jury, of accessing government services, of securing employment and housing — for those who have served their time and those who should never have served time at all. Any reform must be coupled with the evolution of a new social compact that establishes rights of education, job training, and community support.
But America cannot truly address mass incarceration without confronting head-on more difficult questions of punishment, justice, and redemption. True reform will have to permit reentry into society even some people whose past behavior may have been abhorrent and reprehensible. True reform will demand that we take to heart King’s reminder that “an element of goodness may be found even in our worst enemy.”
True reform will ask us to see what Bryan Stevenson has seen. “I have discovered,” Stevenson writes in Just Mercy, “deep in the hearts of many condemned and incarcerated people, the scattered traces of hope and humanity — seeds of restoration that come to astonishing life when nurtured by very simple interventions.”
Any society based on the rule of law requires systems to judge behavior and restrain truly dangerous people. But meaningful reform is perfectly compatible with such a society if we take a more nuanced view of ourselves and each other — a view that recognizes that our knee-jerk impulse for punishment may be flawed, and that nearly everyone is capable of atonement and redemption.
If America had faith that its justice system could punish and rehabilitate effectively, would we still feel compelled to stamp ex-offenders with a label of criminality that follows them for the rest of their lives? How did America’s definition of justice become so warped that it leaves leaves no room for empathy or forgiveness?
Human nature is incredibly complex, and our emotions and experiences are impossibly subjective. The things we do and the reasons we do them fall somewhere along an infinite spectrum of grays. Yet the system we use to judge and punish behavior leaves no room for gray. It has been designed, quite literally, in black and white.
The plague of incarceration is irreparably racialized because it was built that way. It’s no accident that more than five times as many African Americans are imprisoned as whites. Or that, despite similar levels of drug use, whites are multiple times less likely than blacks to be arrested on drug charges. Or that the so-called “War on Drugs” has coincided with enormous increases in incarceration rates, particularly of black and brown people.
Mass incarceration is indeed, as Michelle Alexander put it in The New Jim Crow, America’s “new racial caste system.” It is the latest iteration of a generations-long pattern of what Alexander calls simply the “criminalization and demonization of black men.” Public policy alone won’t address the sources of this epidemic of incarceration.
The righteous American obsession with punishment runs deep, stemming from the comforting idea that there is always a clear “right” and “wrong,” and that a small subset of the population should decide which is which. For centuries, appeals to primal, fearful instincts have proven to be good politics, while notions of forgiveness, reconciliation, and even compromise are considered either a betrayal or naive.
In many ways, the public policy debate around criminal justice reform mirrors American politics as a whole. Both are characterized by bad faith arguments. Both are defined by histories of structural inequity. Both are impeded by us-versus-them rhetoric, racially-motivated notions of justice, and visceral fears of having something taken “from me” that is “not deserved.” The missing ingredients in the U.S. justice system, as in American politics as a whole, are empathy and forgiveness.
But cultivating these ingredients will mean declaring a permanent ceasefire in the arms race of law-and-order rhetoric that has characterized our political discourse for decades. As long as the political right sees greater benefit in mobilizing white racial resentment, rehabilitation and reconciliation will remain impossible.
As long as mass incarceration and its disproportionate impact on certain people is seen as either a desired outcome or, at best, an inevitable side effect of “tough on crime” policies, rehabilitation and reconciliation will remain impossible. As long as the American narrative — in law, politics, media, and culture — equates blackness and criminality, rehabilitation and reconciliation will remain impossible.
America’s legacy of racial oppression, and the struggle and perseverance of generations of African Americans to overcome that legacy, is a foundational part of its history. To seek forgiveness on a societal level is not to forget that. To seek forgiveness is not to bury the past, or to whitewash it further.
To seek forgiveness is to begin to take responsibility. It is to create space for healing and reparation, of which moving from a system of punishment to one of rehabilitation is only a small part.
To seek forgiveness is to acknowledge not just the brokenness of our criminal justice system but the brokenness in each of us, and to refuse to accept a broken system that punishes some far more than others.
To seek forgiveness is to appreciate that too many Americans, over too many generations, have given tacit acceptance to a system that has built white supremacy into its very fabric and institutionalized discrimination under the guise of justice.
Seeking forgiveness for this legacy starts with a good faith effort to reform our criminal justice system. True reform may be difficult and uncomfortable. But it will be an indication that America is, at last, prepared to seek forgiveness for its own original sin.
Author of “Reframe the Day” & former U.S. Senate speechwriter. I write about politics and life, occasionally at the same time. Subscribe & more: www.adaml.blog.