The Case for Abundant Criminal Justice Reform
Some pundits are still trying to blame organizers for the 2024 election. We need to stay focused on solutions that will make our communities safer.
Over the past decade, bipartisan efforts have led to a fairer, safer criminal justice system, the first substantive cracks at reducing mass incarceration in a half-century. America’s prison system, long considered the most punitive and dysfunctional of all the world’s developed economies, is slowly seeing its incarceration rate go down as cities and counties across the country adopt smarter approaches to prison alternatives, programming in prison, and reentry policies that help people succeed when they come home. We’ve passed legislation to reduce Draconian sentencing that still has no match in our peer countries. Culturally, Americans are far more educated about the injustices of the prison system than they were even a decade ago.
Despite these successes, the electoral politics of criminal justice have always been dicey, leading the Harris-Walz campaign to completely avoid mention of it during their failed 2024 campaign. Last week, pundit Matt Yglesias went after criminal justice and policing reform, arguing that activists have pushed Democrats into untenable policies that led to chaos and defeat. Yglesias is wrong about both the politics of criminal justice reform and the policies that make our communities safer and healthier. (I’ve written previously about the efforts of Yglesias and his ilk to blame organizers of color for the Harris campaign’s 2024 loss, and for a short and sweet takedown of Yglesias’ “manifesto”, check out my colleague Josh Hoe.) Because Yglesias is an influential Democratic insider, his inaccuracies can’t go unchallenged, lest a rudderless Democratic Party jettison their values on these issues in the false hope that doing so will win back voters.
The fact that most of the country, including the federal government, enacted criminal justice reform from 2016-2020, often on a bipartisan basis, is a significant triumph of public policy. Lots of thoughtful people are working on this issue every day, and have had success at the federal, state, and local level, including passage of the historic First Step Act during the Trump administration. This fertile period of reform was also a boom period for Democrats federally in the 2018 and 2020 elections, and coincided with the election of numerous high profile progressives across the country. This reality directly contradicts Yglesias’ piece, which seeks to brand criminal justice as a political albatross for Democrats. Instead of backing down from all the progress we’ve made, we need to be doubling down on the ideas that have worked, and invest more in turning around our still broken criminal justice system - an abundance agenda for criminal justice reform.
The politics of criminal justice reform will always be trickier than the policies, so let’s start there. According to Yglesias’ timeline, Democrats used to deploy a “smart on crime” approach in the late 00s and early 10s, but abandoned it at the 2016 Democratic convention, and have since become a party that embraces civil disorder and lawlessness, to drastic electoral consequences. This couldn’t be less accurate. First, the “smart on crime” framing, in which justice reforms with proven track records of improving safety and turning lives around get stakeholder buy-in, has been used for years by criminal justice advocates working in bipartisan coalitions to pass bills, progressive prosecutors who have safely reduced crime and incarceration together, and other leaders in the field.1 It was never abandoned.
There were no mainstream Democrats in any recent election arguing that people who break the rules should not be punished. Even the right-wing punching bag, bail reform, involves whether people should be incarcerated pre-trial, before they’ve been convicted of a crime. Sure, there are some activists who may take more extreme positions, but they have no influence in the Democratic Party, therefore no relevance to Yglesias’ argument. To the contrary, VP Harris dedicated an entire night of her convention to her prosecutorial career, and nearly every Democrat running for office in 2022 and 2024 has zeroed in on public safety. Yglesias provides no evidence for his bombshell assertion that Democrats have thrown up their hands on enforcing the rules.
A more accurate timeline would recognize that 2016 was actually the beginning of fascinating and still lasting cooperation across the aisle on criminal justice reform, between Democrats and Republicans, and between liberal and conservative groups. Those partnerships have taken a hit in recent years, but criminal justice remains a more cooperative issue than nearly any other in today’s polarized country.
Even though Yglesias is wrong on the politics of criminal justice, he is correct that we have a “public disorder” problem in America that has metastasized post-COVID. Though he never defines the term himself, he is probably referring to an increase in public drug use, street homelessness, items being locked away at CVS, and other quality of life issues that are easy to notice in American cities. Unfortunately, in blaming activists for turning Democrats against law and order as the culprit, Yglesias ignores most of the other explanations for public disorder that emerged in 2020 and 2021. For example, crime went up in every region of the country after COVID, including Republican-controlled places that enacted zero policing and criminal justice reforms. It’s almost as if there was something other than criminal justice policy driving a change in societal behavior during a global pandemic and in the aftermath of COVID lockdowns.
What’s most remarkable is that the main graphics Yglesias uses to demonstrate his point undermine his core thesis, that disorder is driven by lefty political organizing. The first is a graph from the Federal Aviation Administration on the explosion of unruly passengers post-pandemic, and the second is a graph showing steadily more reckless driving post-COVID, something anyone who has spent significant time on the road has probably observed. (My partner and I have noticed that people barely pull over for emergency vehicles anymore.) Neither the increase of unruly passengers or reckless drivers are the result of criminal justice policy. There are no advocates or legislators pushing this behavior. This decline in social trust and the way people conduct themselves in public spaces begs for serious analysis. Nearly four years after COVID hit us, we still don’t really understand its impact on the American psyche. I’d venture that the fear and stresses of isolation during a deadly pandemic did more to knock people off kilter than say, a 2019 speedy trial reform bill.
Public disorder also remains persistently high in New York, D.C., and the Bay, where so many of the media elite live. What these cities also have in common is hollowed out downtowns struggling to bounce back from COVID during the Work from Home era, exorbitant housing prices, and struggles with arguably the most dangerous drug crisis in American history (fentanyl, xylazine, and even newer deadly offshoots). Far from being ignored, there are committed public servants and under-resourced advocates working on these issues every day.
If public disorder is a serious and consequential problem, it requires ambitious and proven solutions. (As well as innovations I’ve written about previously.) Yglesias offers a messaging solution - more support for police - as the answer. That’s not serious. Here’s where the abundance agenda for criminal justice reform kicks in. Democrats will win on public safety if they reduce crime and help vulnerable people turn their lives around.
First, we’ll only reduce disorder and increase safety with more support for mental health and addiction services, including way more housing for both categories. These interventions don’t require reinventing the wheel; in New York City alone we have programs like Fountain House, Hope House, the Living Museum, the Castle, and All Kings.2 We just need more of all of those to meet the massive demand. Likewise, we need more problem-solving courts, which have demonstrated histories of significantly reducing recidivism. And we need much greater access to housing, as this incredible essay in Esquire lays bare better than any policy paper could.
There is also no addressing public disorder without addressing fentanyl. Research has shown that Democrats’ failure to talk about the fentanyl crisis (as opposed to conservative media) may have caused regions of the country to swing right. You know who is talking about the crisis? Advocates working to save lives with a public health-centered approach, who usually come to this with personal experience, and are much more connected to hard-hit communities than mainstream Democratic politicians. If Democrats are serious about competing in the heartland, they need to care and do something about 100,000 deaths per year from fentanyl and related analogues, especially solutions that elevate treatment and recovery.
Last but not least, we need the police to get better at solving crimes. While District Attorneys often get criticized when shootings and other serious crimes go unpunished, DAs need the police to arrest the perpetrators in order to bring cases. Our criminal justice colleagues at the Niskanen Center are doing some interesting work on how to improve clearance rates. As Neil Gross has written, the policing profession is loath to innovate, but there are examples of police chiefs who have significantly improved their departments ability to solve crimes and work with communities. Even so, you won’t find a single serious police officer who thinks policing alone can solve public disorder that’s driven by deep poverty, lethal drugs, and a broken mental health system. (One of New York’s most prolific shoplifters is literally the son of a police officer.) Rank and file police would also benefit from a true abundance agenda in criminal justice reform.
For this to work for Democrats, they have to get these programs enacted, and talk about them, a tall order! That means governing effectively, which has been a major challenge for New York Democrats and undermined the case for liberal government locally. And I’m the last person who will defend the national Democrats’ lifeless comms apparatus, which had little of value to offer voters this last election cycle, and on the issue of public safety has consistently retreated into a defensive posture when attacked by Republicans. Extensive research by Vera Action has shown Democrats the right path to talking about public safety responsibly and effectively.
This is the way forward. For societal problems as large as our criminal justice system, shaped for centuries by race and class, there are no quick fixes, only serious work. The good news is that we know a lot more than we used to about how to help people in ways that make our system fairer and communities safer. Now is the time to lean harder into fixing our broken system, not running away from our problems.
Postgame: The only way to get through the next few years is to work together across divisions. The current effort by the extended Podcast Bro network to belittle and blame organizers is unhelpful, especially when organizers are the ones who have to live more acutely with the consequences of many extreme policies that are coming, and take on these policy fights in the days ahead.
In my career I’ve tried hard to always punch up, or at least laterally. That’s why I focus so much of my attention on elected officials, including Democrats. Punching down and left may come easily for people with large followings like Matt Yglesias, but doing so will not bring the Democratic Party closer to sustained victories.
As someone who literally ran state legislation for the ACLU’s “Smart Justice” campaign and then ran for Manhattan DA, I am deeply familiar with this strategy, and amused that Yglesias even gets this framework wrong. In his piece Yglesias offers the “smart on crime” example of replacing a 15-year sentence with a 10-year sentence and severe parole conditions leading to better deterrence, when it is well understood that it is the certainty of being caught, not the length of sentence, that deters serious criminal activity. An actual smart on crime approach would allow someone to reduce their sentence through access to programming in prison so they could better succeed when they come home, or increase deterrence on the front end by improving police clearance rates.
In my work I’ve come across great programs across the country, in Flint, San Quintin, Milwaukee, St. Louis... I highlight these New York orgs to show how hard people are working to fight disorder right now.