Criminal Justice Policy: Voting “Down” In 2016

This article originally appeared on Capital Commentary, a weekly current affairs publication by the Center for Public Justice.

Dissatisfaction with the presidential voting options presents more than a few Americans with the option of staying home from the polls. With the major parties’ presidential candidates consistently polling high “unfavorable” ratings, some citizens may consider de facto voting for “none of the above” by opting out of the voting process altogether.

However, “none of the above” must not eclipse that which is below.

The “down ticket” of congressional elections deserves studied attention. Much of the future of criminal justice policy in our country depends on sensible legislation at the federal level. Local and state elections also matter. Mayors, municipal and county councils, sheriffs and district attorneys, state legislators and elected judges all impact the criminal justice system. Christian citizens should understand that while a presidential vote carries significant weight, our system of checks and balances requires close and discerning attention to a variety of electoral contests that impact the quality of life in America; these contests provide opportunity for voices committed to justice and shalom at home and abroad.

Criminal Justice Reform at the Federal and State Levels

While the 2016 elections certainly hold future import for criminal justice reform, their current shadow has already frozen the Senate’s bipartisan reform efforts as legislators factor in electoral risk in their criminal justice reform attempts. Three federal bills comprise the bulk of reform in this area: Sentencing Reform Act (H.R.3713) works to decrease harmful mandatory minimum sentences for nonviolent offenders, while the Recidivism Reduction Act (H.R. 759) will improve facilities across the federal system. Second Chance Act (H.R. 3406) will provide grants to nonprofits, including faith-based organizations, to provide much needed support for reentering citizens.

Criminal justice reform advocates have all but conceded that these reform bills will languish past the election. Indeed, some openly wonder if the retardation of the bills’ progress reflects an effort to keep the current administration from another accomplishment on its watch. Voting on the contested Senate and House seats in November can move these reforms through (or not) in the next administration.

Criminal justice reform requires state attention as well. The recently released documentary, Milwaukee 53206, follows Beverly Walker and her family as they cope with the incarceration of her husband Baron. Baron was originally sentenced to terms of twenty-five and thirty-five years for armed robbery in the early 1990s when his rehabilitation efforts could have been rewarded with parole. Instead, Baron Walker found himself facing the full sixty years when the Wisconsin legislature passed “Truth in Sentencing” legislation in 1998 and made it retroactive. Judges who sentenced prisoners under the former guidelines handed out terms that fully anticipated the possibility of a discretionary release to community supervision if a prisoner had made the appropriate transitions in life to warrant a second chance.

As a result of the 1998 legislation, however, new inmates are coming in with shorter mandatory minimum sentences, which effectively means Mr. Walker will see other prisoners come and go because the legislators changed the rules after his sentencing.  The documentary features Ms. Walker working with people of faith for change in the system, to bring home Baron Walker, husband, father, and grandfather, whose personal reform and rehabilitation would have earned him release under the former guidelines.  This story demonstrates how state legislators wield considerable power in determining sentences in an era minimizing judicial discretion and, therefore, checks and balances.

Criminal Justice Reform at the Local Level

Municipal and county elections also bring opportunity for considering criminal justice reform at the local level. One good example of this is the office of district attorney. Responsible as the chief law enforcement officer and lead prosecutor for a jurisdiction, district attorneys (sometimes called state’s attorneys, county attorneys, or commonwealth attorneys) have primary responsibility for prosecuting civil and criminal cases. They are either elected by the people of their jurisdiction, or appointed by an elected chief executive officer in a district. 

Their possession of “prosecutorial discretion” makes their office the primary place where the actual charges against a defendant are formulated. They often find as many charges as possible to file, in order to persuade the majority of those facing charges to accept a guilty plea to lesser charges. (Between 94 and 97 percent of criminal cases never go to trial, but end in plea bargains, raising the possibility of innocent people accepting a minimal charge rather than risk wrongful conviction on greater ones.) The front door for the system of incarceration lies primarily at this local level. District attorneys seldom run as reform candidates, but those who do need support against the din of “get tough on crime” rhetoric that masks a “get tough on people who commit crimes” rhetoric. 

District attorneys’ departments run not only on their policy vision, but also on the culture they help create. Temple University criminologist Nicole Gonzalez Van Cleve recently published an ethnographic study of Chicago’s criminal court system under the title Crook County: Racism and Injustice in America’s Largest Criminal Court. Based on fifteen years of research, Van Cleve details the ways in which our colorblind system has simply recoded people of color in ways that stack the decks against defendants from those constituencies.

In Van Cleve’s documentation, the racial slurs of past generations have been replaced with non-racialized derogatory labels such as “mopes” and “monsters,” the former reserved for low-level nonviolent offenders, the latter for those who commit violent crimes. Both terms reflect a dehumanization of persons that should trouble people of faith whose sacred texts declare humanity to be created in the image of God, and whose theological traditions hold to the hope of redemption.

But the author goes on to show how even criminal justice professionals of good will bend to the negative pressures of the court system’s culture, demonizing defendants and their families and ridiculing those within the professional ranks who seem to have defendants’ best interests at heart. The language is deracialized, but recognizable. Defense attorneys, private and public, wear the moniker “mope-lover” (sound familiar?) from those who reflect the cultural contempt for those facing trial in Cook County. The district attorney’s office in Cook County is up for election in November 2016, as it is in many other races where dehumanizing cultures threaten to provide warehousing incarceration experiences that worsen the human spirit.

While we do not elect prison wardens, we do elect sheriffs who oversee county jails, what the Vera Institute has called “America’s Front Door” to the criminal justice system. People of faith are giving growing attention to prison sentencing practices and conditions of confinement there. But only recently has there been similar attention given to the “front door” of the jail, operated at the city or county level (see my Capital Commentary article “A Jail is not a Prison”). Yet recent deaths of inmates in county jails, ranging from the highly publicized Sondra Bland case in Texas to the dehydration death of a Milwaukee county jail inmate (currently under investigation) bring witness to the critical importance of county elections, where the office of sheriff finds place.

Why Your Vote Really Matters

Overall, the past decade has brought about real progress in addressing the abuses and excesses of a criminal justice system that has been built on retributive justice, rather than on the ethics of rehabilitation, restoration, and redemption. Politically conservative voices from Texas-based Right on Crime to Prison Fellowship’s policy division have produced data suggesting that it is better to be “smart on crime” than tough. Smart means looking for evidence-based practices that serve the common good, enforce means of accountability, and provide real rehabilitation and opportunities for a supported fresh start post incarceration. Smart means investing in alternative sentencing and community corrections where appropriate, recognizing the long-term value of rehabilitated productive systems vs. continuing expenses for mass incarceration.

But such progress has required investment at all levels of government, not just the presidency. From tensions between police and communities at the local level, to court culture at the county level, to legislation at the state and federal level, to decisions of professional discretion by judges and district attorneys, the criminal justice system exists in accountability to the will of the people. The failure to vote, particularly in local and state elections, plays into a system developing without the watchful eyes of its citizenry. Citizens would do well to closely examine who and what is on their down ballots in this election prior to casting their votes.

Some years ago, a New York state prison chaplain testified before a state legislative hearing on prison conditions. The chaplain, who lived on the grounds of the prison, complained long and admittedly loudly about overcrowding, poor sanitation, lack of programming, and a litany of other conditions he found problematic to his religious sensibilities. He closed with a plea for the legislature to invest more heavily in systems reform and resources that would point toward rehabilitation and restoration. One of the legislators, wishing to silence the chaplain, pointed out that the cleric lived on state property. “Reverend, do you mind telling this hearing who owns the house you live in?” queried the solon. The chaplain responded, “The people of the state of New York!” This was a clear rejection of the legislature’s attempt to act as a quasi-autonomous body in relation to the people, and an appeal to the custodial nature of democratic governance and its legislative accountability to the electorate.

That is, unless you don’t vote….

- Harold Dean Trulear is the Director of the Healing Communities Prison Ministry and Reentry Project, Associate Professor of Applied Theology at Howard University School of Divinity, and a Fellow at the Center for Public Justice.