The GOP’s Justice Dilemma

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Photo by Darron Birgenheier via Flickr

Photo by Darron Birgenheier via Flickr

Can the bipartisan movement for criminal justice reform survive the divisions that have opened up across the nation this month?

We may find out this week, as GOP advocates for reform face what may be a resurgence of hard-line sentiment at the Republican National Convention, which opens today in Cleveland—less than two weeks after the murders of five Dallas police officers during a march called to protest law enforcement fatal shootings of civilians in Louisiana and Minnesota.

Yesterday’s shooting of three police officers in Baton Rouge adds a new tragic context to the first night’s convention theme: Making America Safe Again.

The theme was introduced by presumptive nominee Donald Trump following the Dallas killings. In a video that quickly went viral, Trump called the shootings by a lone sniper an “attack on our country and an attack on our families.”

He added, “Every American has the right to live in safety and peace.”

Complicating matters further is a GOP platform that in many areas has shifted ideologically even further to the right than the platform adopted in 2012, even as it advances key proposals for justice reform at the federal level—such as reducing sentences for certain non-violent offenders.

Although the proposed platform–which is expected to be voted on tomorrow–has not yet been made public, Republican platform committee members have reportedly adopted staunchly conservative positions on controversial social issues such as same-sex marriage. The Crime Report has also learned that the GOP platform draft includes a provision that would enable judges to modify federal sentences for non-violent offenders with substance abuse or mental health issues.

At the same time, according to draft provisions leaked last week to The New York Times, the platform committee has proposed a bipartisan federal commission to “purge” the federal lawbooks and regulations and protect Americans from being prosecuted for behavior that was not conducted with criminal intent —both key demands of conservatives.

The struggle to maintain the bipartisan momentum on issues such as sentencing reform will be on the convention agenda.

On Tuesday. two prominent Republican groups, the U.S. Justice Action Network (USJAN) and GOPAC, will join governors and legislators from Georgia, Kentucky, Oklahoma, and Ohio for a special- issues session reviewing the progress achieved so far in reducing jail and prison populations and cutting recidivism at the state level.

What remains to be seen is how these reforms—which have been adopted by many battleground states—will feature in a national campaign geared to “Making America Safe.”

Activists who helped prepare the GOP platform resolution in support of criminal justice reform say that many in the party are prepared to move beyond language in the previous 2012 platform that equated public safety with keeping prisoners behind bars.

According to sources at USJAN, the 2016 platform goes further than expected on sentencing reforms, rehabilitation, and drug treatment, after receiving support at the committee meetings from pro-reform members such as Oklahoma Gov. Mary Fallin.

Reformers are not expected, however, to push the issue of police reform, which remains a “sensitive issue” among conservatives, says Holly Harris of USJAN.

Derek Cohen of the Texas Public Policy Foundation, a nonprofit think tank which was one of the architects of the “Right on Crime” movement, tells The Crime Report it is “too soon to say” whether the events in Minnesota, Louisiana and Texas have changed the conversation on policing– though he added they do indicate a need for mental health crisis intervention.

But even if some of the major criminal justice reform planks pushed by activists are approved this week, they are likely to be overshadowed during the campaign by the tough-on-crime approach of the party’s presumptive nominee.

The Law and Order Candidate

Although Trump’s position on many criminal justice issues—such as marijuana legalization—has placed him outside traditional party orthodoxy, his self-identification as the ‘Law and Order’ candidate, along with his focus on security issues and rising urban crime—may offer some comfort to Republican hardliners.

The choice of Arkansas Sen. Tom Cotton to deliver one of the speeches in tonight’s opening session of the convention could be telling.

Cotton has been an outspoken opponent of the federal Sentencing Reform and Corrections Act and other efforts to reduce prison and jail populations, claiming that the country has an “under-incarceration problem.”

He has warned that programs to reduce sentences and provide for early release of non-violent offenders will endanger communities. “Security has to come first, whether you’re in a war zone or whether you’re in the United States,” Cotton said in a recent speech to the Hudson Institute,

Nevertheless, reformers remain hopeful.

GOPAC Chairman David Avella, who will be speaking at tonight’s session, as well as at the panel for criminal justice reform tomorrow along with representatives of USJAN, told The Crime Report he expects Trump to prioritize economic growth, trade and security over issues of criminal justice reform.

But, he added, “It’s only July. There is plenty of time.”

In June, Harris of USJAN approached Donald Trump and his advisors with polling data that show overwhelming support for criminal justice reforms in the battleground states of Ohio, Michigan, Pennsylvania, and Florida, with the message that reforms will make for good politics.

“You’ve got to remember that these states that you’re going to be going into are either working on or have already passed very significant reforms,” Harris said she explained to the Trump team.

“There are huge coalitions in these states that have worked tirelessly on these issues, and it will not be helpful for candidates to come in and attempt to reverse these policies that have been really beneficial to public safety.”

Harris concedes that the emerging ‘law and order’ rhetoric could undermine reformers’ efforts, but “you never know what a person means when they say ‘law and order.’ ”

“I certainly hope that they don’t mean reverting to the failed policies of the ‘80s and early ‘90s, which we now know exploded our prison population,” she continued, noting that the ten states that most significantly reduced their prison populations have seen a 13% drop in crime.

“What has positively impacted law and order is smart justice reform.”

States Get the Message

In today’s otherwise polarized political climate, justice reform has been one of the few areas to receive support across the entire political spectrum—-particularly at the state level. According to a 2016 report by the Vera Institute, 46 states have adopted criminal justice reform legislation since 2014 (including 28 red states), and 18 states have created special task forces to review their practices.

At the federal level, House Speaker Paul Ryan (who is the official chair of the convention) has placed himself on the side of reform, In a speech earlier this year, he announced that he had become a “latecomer” to justice reform—following his recognition that some of the harsh sentencing strategies that put individuals behind bars for long periods were counterproductive.

“(There are) better means of actually dealing with the problem than basically destroying a person’s life,” said Ryan.

According to the Justice Action Network, Ryan is pushing for a House vote in September, but a strong law-and-order message coming out of the convention could undermine its prospects.

Adding further complications to the reform agenda is the presence of Indiana Republican Governor Mike Pence, announced last week as Trump’s running mate, on the national GOP ticket.

This year, Pence reversed his 2014 stance on mandatory minimums and curtailed the ability of judges to use discretion when sentencing.

“It would be unfair to our movement to say that we’re not frustrated, because we are,” Harris told The Crime Report.

Harris added: “Criminal justice reform is only controversial in Washington D.C., and I think it is because there is a real disconnect between Congress and what is happening in (politicians’) own back yards. It’s not controversial anywhere else in the states: we have never lost a vote.”

That’s one reason reform advocates like Avella are determinedly optimistic about the survival of a bipartisan reform agenda in the next congress.

Avella says he is encouraged by the growing support for key bills on mental health and opioid addiction in the present congress.

The Senate last week passed, 92-2, a bill expanding access to medical treatment for opioid users.

If a Republican-led congress and President Barack Obama have been able to work together on those bills, “it’s pretty encouraging to think that you could get a President Trump and a Republican congress to do even more,” Avella said.

But that, inevitably, will depend on how Donald Trump spells out his “law and order” goals when he addresses the convention Thursday for the first time as the party’s anointed choice to lead it into the 2016 campaign.

Victoria Mckenzie is a New York-based freelance writer. She welcomes readers comments.

3 thoughts on “The GOP’s Justice Dilemma

  1. Very interesting to learn more about the different factions within the Republican party around criminal justice reform – v. good story!

  2. Great article, brilliantly articulating a severe problem in our society….

    While it may seem reasonable to place this problem on the doorstep of a political party’s platform, reform in criminal justice may have less to do with party affiliations and party platforms at the Federal level than with the influence of the for-profit prison lobby, on both political parties, at the State level, .

    Just one of the provisions of State contracts with private prisons that encourages incarceration is an agreement “to guarantee that they will fill a certain number of beds in jail at any given point. The most common rate is 90%, though some prisons are able to snag a 100% promise from their local governments. Because of these contracts, the state is obligated to keep prisons almost full at all times or pay for the beds anyway, so the incentive is to incarcerate more people and for longer in order to fill the quota.” Other provisions of these contracts also contribute to human rights violations for prisoners:

    Add to the problems of the for-profit prison industry a compromised Federal judicial system, from the FBI to the AG, and effective reform that focuses on justice and equality under the law becomes an even greater challenge.

  3. I was surprised to see Oklahoma Gov. Mary Fallin designated as pro-reform. Oklahoma has some of the harshest laws and sentencing in the country, and according to the Sentencing Project, has an incarceration rate of 700 per 100,000 of its residents. That is second only to Louisiana with a rate of 816. But Ok is number one when it comes to women in prisons. As I was told by a Ok legislator, this state is all about punishment. If indeed Gov. Fallin is trying to reverse that mindset, I wish her every success.

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