From the 1970s through the turn of the century, criminal justice was one of the most divisive issues in American politics, with the “soft on crime” tag dooming legions of candidates on the campaign trail.
But over the past few election cycles, a wide range of criminal justice reforms has earned public approval, suggesting that the chest-thumping rhetoric of yesterday continues to lose its once-potent appeal.
This month’s midterm elections deepened the trend.
In Florida, where reform has been particularly hard won, voters returned the right to vote to more than a million people convicted of felonies, while Louisiana voters declared that jury verdicts in felony cases now must be unanimous.
These measures erased two of the most egregious vestiges of the pre-civil rights era, and they carry enormous symbolic and practical effects.
Reform-minded prosecutors took over in multiple cities, from Boston to St. Louis. Police accountability was strengthened in Nashville and in Washington State. Though criminal justice wasn’t central to their campaigns, the governors-elect in Wisconsin and Nevada seem much more likely to advance sensible policies than their predecessors.
These gains for safety and justice, and many others, are particularly impressive in light of the political environment. From the time that polls opened for early voting through Election Day, there was a massacre of worshipers at a synagogue in Pittsburgh, a dozen bombs mailed to prominent political figures, and White House warnings about a caravan “invading” the country across its southern border.
Violence (and the fear of it) had to be high on voters’ minds. And it was: 83 percent of voters told exit pollsters that “extremist violence” was a factor in their votes.
When people are afraid, they yearn for protection, which traditionally has meant support for “lock ‘em up” measures.
Yet across the nation, voters besieged with scary events and frightening rhetoric mostly swung in the opposite direction this month. That suggests a real realignment of public opinion toward crime and punishment—one that distinguishes terrorism from street crime, that views people convicted of crimes as humans rather than “others,” and that recognizes the path to safer communities isn’t paved only with bricks and mortar.
While polls over the past several years have validated these attitudes, it’s what happens at the ballot box that really matters.
But there were caveats and mixed signals as well. Some of the progressive prosecutor candidates were defeated, while others didn’t make it through the primaries. The measure with the most direct potential impact on incarcerated populations—a ballot initiative in Ohio to downgrade some drug offenses from felonies to misdemeanors and reinvest the prison savings into treatment and victim services—went down by nearly 30 points.
The Republican candidate for governor in Ohio, state Attorney General Mike DeWine, had been a strong supporter of expanding incarceration alternatives for lower-lever drug violators—and he may still be. But when his Democratic gubernatorial opponent, Richard Cordray, embraced the ballot measure designed to do exactly that, DeWine came out against it, arguing that as written the policy would make Ohio a magnet for dealers.
(Now that he has won, the legislature may take up and pass a similar package of policies in the lame duck session.)
In California, Gavin Newsom’s victory is likely to reinforce California’s efforts at prison reform. On the other hand, although the ballots are still being counted in Florida, once again, the nominal winner of Florida’s gubernatorial contest, Ron DeSantis, ran on a hardline justice platform while his opponent Andrew Gillum championed changes to the bail system and other reform measures.
Clouding the picture: Gillum, the Democrat, cited the conservative groups Right on Crime and the James Madison Institute as the sources of his criminal justice policy advice.
The Georgia governor’s race was another subtle illustration of how tricky this terrain remains. Republican candidate Brian Kemp took aim at illegal immigration and violent gangs but steered clear of criticizing the extensive efforts of outgoing Republican Gov. Nathan Deal, who led six consecutive years of nearly unanimous legislative action on criminal and juvenile justice.
Meanwhile, Democrat Stacey Abrams ran on an aggressive reformist agenda, but the messaging in her television ads and in the sole televised debate was far more forceful, lamenting low pay for local law enforcement officers and promising to crack down on drug peddlers.
One possible – and encouraging – takeaway from the electoral tea leaves is that criminal justice has been largely defanged as a campaign weapon. Healthcare, the economy and immigration ranked as the top tier issues; in the big races, bread-and-butter criminal justice policy flew under the radar, with few candidates for major offices featuring it as a core component of their platforms.
When they do raise the subject, it’s typically to call for more safety and justice rather than pitting the two against each other.
Crime’s dimming presence in campaigns follows a long-term drop in both violent and property offenses, which have been cut in half since their peak in the early 1990s. It also comes after a decade in which more than 30 states adopted sentencing and corrections policies that deemphasize prison in favor of programs that cost less and more effectively reduce recidivism, often with broad bipartisan support.
At the national level, an otherwise paralyzed Congress just managed to pass comprehensive legislation to combat the opioid epidemic, an effort that focused on expanding treatment and avoided the reflexive sentencing enhancements of the past. It also appears poised to approve both sentencing and prison reforms as part of the “First Step Act,” which would be the first major federal criminal justice policy package in years.
That criminal justice reform has become such fertile ground for bipartisanship may help explain why the reform agenda was neither a grand asset nor a grave liability in last week’s elections. American voters seem savvier about the issue and demand more than baseless rhetoric and simplistic slogans.
They’ve seen that movie, and now they want real results.
The new crop of elected officials across the country, at all levels of government and up and down the political spectrum, would do well to take notice.
Adam Gelb has worked in criminal justice for more than 30 years as a journalist, congressional aide, senior state government official, and nonprofit executive. He is currently developing a national nonpartisan criminal justice membership organization and think tank.