Working with Republicans on Criminal Justice

My journey to finding common ground so we can get people home.

This is my third Substack post about how to build successful social justice campaigns. Check out the Introduction to the Gameplan, and last week’s post, How to Make this Moment in Police Reform Count.

In response to my last post on reducing police involvement in traffic stops, someone suggested that I was “putting a lot of faith” in Republicans and moderate Democrats. I don’t put blind faith in anyone to do the right thing in politics. But I do think power must be organized.

Last week, Congress reintroduced the EQUAL Act, a bill that would eliminate the notorious “crack vs. powder” disparity in cocaine sentencing that has sent tens of thousands of people to prison since the 1980s. We came tantalizingly close to passing this legislation last year, thanks to significant Republican support. Now that Republicans control the House, working with them will be even more essential. This is how we plan to do it.

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This is definitely not a post I would have written a decade ago. I came to politics through left-wing activism, and stomaching the Democratic Party seemed like stretching myself enough. However, my obligation in this work is not to my own sensibilities, but to people suffering in our prisons and more broadly across the criminal legal system. That means working with Republicans unless you assume that:

a) Democrats can attain so much power they can ignore Republicans,

b) Having attained that power, they will ferociously tackle injustice.

I’ve been at this for 22 years, and I don’t see it. Maybe I’m wrong. But consider this: Even after a strong midterm election for Democrats, Republicans still control the state legislature or the governor’s mansion in 32 states, with trifectas in 22 of them. Of the 15 states with the highest incarceration rates, mostly in the South and Midwest, Republicans control the state legislatures in all 15, and have trifectas in 12. If you care about tackling mass incarceration where it is most severe, whether to work with Republicans isn’t even a discussion. (Caveat: Working with Republicans is politically unnecessary in certain cities and states, though their conservative arguments still need to be engaged.)

Here’s how we’ve been building common ground, using the EQUAL Act as an example. 

Scouting Report: In the 1980s, at the height of the War on Drugs, Congress passed a bill authored by Senator Biden that punished possession of crack cocaine at 100 times the severity of powder cocaine. The law was racist in origin, and application - ultimately tens of thousands of people, mostly Black men, were sent to federal prison on mandatory minimum charges that could span into the decades. 

People have been trying to undo this law for a long time. In 2010, President Obama signed the Fair Sentencing Act, which lowered the sentencing disparity from 100:1 to 18:1. Why 18? No particular reason, that was just the best Congress could do back then. In 2018, as part of the First Step Act, signed by President Trump, the 18:1 provision was made retroactive, meaning thousands of peoples’ sentences were reduced. The current bill, as the name suggests, would equalize the treatment of crack and powder cocaine, both moving forward, and retroactively, which would lead to about 8,000 people coming home from federal prison. 

A dynamic bipartisan coalition worked this bill last session, ultimately passing it in the House 361-66, and then securing 11 Republican co-sponsors in the Senate - including conservatives like Moran (KS), Lummis (WY), and Capito (WV). That should have been enough, but due to the dysfunction of modern politics we couldn’t even get it onto the floor for a vote, and a compromise deal was struck from the budget in the final days of Congress. You can deep dive the sordid details here. 

Does this bill have any chance in a divided Congress? Not without Republican support. 

Here’s a Gameplan for Working with Republicans:

Keys to the Game: As always, our keys to the game involve organizing, policy, political strategy, and messaging. The challenges here are immense:

• It’s tough to organize Republicans for obvious reasons - the massive partisan and cultural divide means most social justice organizations have little Republican membership or regular contact with Republican politicians.  

• As activists elevate bolder and more far-reaching policy demands (like defund, or abolition), building a bridge to Republicans gets even harder.

• With a few notable exceptions, much of the national progressive movement has categorically ruled out working with Republicans, instead running strategy through a few liberal politicians who don’t always have the full backing of Democrats. Elected Democrats aren’t much better - in the final days of 2022, key Democratic and Republican offices weren’t even talking to each other. 

• Republican messaging on crime during elections is so extreme, toxic, and borderline racist that penetrating it to talk about reform can understandably feel like a waste of time.

• Senator Tom Cotton (R-Arkansas) is actively organizing Republicans to move away from modest reforms and return to hardcore law and order roots.

That’s just scratching the surface - we’re not even talking about tabloid crime coverage, January 6th, Republican policies on other issues…the list could go on. This piece isn’t about making new best friends. It’s about working constructively on common ground policies. 

Organizing: Why do conservatives care about criminal justice reform? For the most ardent ones, it’s because they’ve been directly impacted - just like most people who organize in this arena. Jared Kushner, one of the strongest champions of the 2018 First Step Act, came to the issue through the experience of visiting his father in prison when he was a young man. You never know what allies you’re going to find when you connect with people about their lived experiences. Between personal relationships, professional experiences, and community work, plenty of Republicans understand at a base level that our prison system doesn’t work. With respect to the EQUAL Act, most understand that serving decades in prison for a drug charge isn’t right.
Below, in the Messaging section, I’ll talk more about other paths to organizing Republicans on these issues, including redemption, government overreach, common sense, public safety, and supporting people economically.  

Policy: The market research firm, Material, conducted a pro-bono survey for us, and found that one of the differences between how liberals and conservatives view criminal justice is that the former looks at the prison system generally as part of broader set of injustices, while conservatives scrutinize individual reforms in determining their support. 

An ally’s private polling backs this up: Republican voters are responsive to solutions to crime, even solutions that those of us on the left would label “investing in community,” like non-police interventions, mental health, and diversion programs, while they are most hostile to politicians (or messages) that they perceive as not caring about crime.

My own experience working with Republican legislators bears this out too - an Oklahoma legislator will rail against “New York-style bail reform” on the one hand, while praising his own state’s parole reform efforts on the other. 

The EQUAL Act sits at the intersection of a truly important policy goal (reversing a War on Drugs law and bringing thousands of people home) and a narrow objective that Republicans can understand as correcting a misguided policy of the past. 

Political Strategy: Senator Cory Booker and Representative Hakeem Jeffries have both been excellent EQUAL Act sponsors, but no one has impressed me on this more than Representative Kelly Armstrong (R-North Dakota). Armstrong spent ten years as a criminal defense lawyer, and understands the mechanics and immorality of the criminal justice system as well as any member of Congress. And he’s indefatigable, whipping the 140 votes House Republicans cast for EQUAL last session. Without him, we’d have no chance of passing it in a Republican-led House this year. On the Senate side, we lost a few sponsors to retirement that we have to replace. On the plus side, Democrats now have a clean majority in the Judiciary Committee. The White House is nominally for the bill, but career Drug Warriors at the DEA are always looking to spike criminal justice reform.

Here’s what we need to do in the next few months:

• Get back to 10 Republican sponsors in the Senate. Get the bill through the Judiciary Committee there.

• Get Rep. Jim Jordan on board to get the bill through the House Judiciary. 

• Push both chambers to get this done early in the year, before 2024 heats up.   

Along the way, you’ll see me praising Republicans who step up. Those won’t be typos. At a time of a Republican internal fight about whether to keep supporting criminal justice, I’m going to show appreciation to people who do the right thing.

Messaging: If I’m talking to a left-wing friend, it’s pretty easy to explain why the EQUAL Act matters: It’s a vestige of the racist War on Drugs that has locked up mostly Black men for decades in our overcrowded federal prison system. 
However, messaging more effective to persuading Republicans on the EQUAL Act includes: 

• Appeals to redemption: Most people believe in second chances, it’s a tenet of the Christian faith. An ACLU poll we did in 2018 showed that just using the word “redemption” could increase support for an issue by 5% among Republicans. The EQUAL Act gives a second chance to people who have spent decades in prison. 

• The immorality of our system: The messenger here is key. For example, check out Prison Fellowship’s faith-led messaging on the EQUAL Act. 

• Common sense solutions to public safety: Convey that this isn’t radical change. The messenger here is also key! Check out the National District Attorneys Association explaining how our current drug laws undermine trust between law enforcement and community. The additional “common sense” angle EQUAL has going for it is that 41 states already treat crack and powder cocaine equally - so really we are just bringing federal policy in line with the states these Members of Congress represent. 

• Our system of over-incarceration is an example of government overreach: While there have always been libertarians who brought this critique to the War on Drugs (See: Ron Paul), this is a new strand of mainstream conservative skepticism, which has led to the highly intriguing new subcommittee on the “Weaponization of Government.” This environment has made Republicans receptive to hearing about how people like Orrin Jackson, one of our Empathy Network leaders, was sentenced to 90 years for dealing crack in the 80s. 

Something I didn’t include: “The prison system costs too much money.” This is an ineffective message, in my experience. Conservatism prioritizes state resources on keeping the public safe, which is why “small government” arguments against policing, prisons, and war rarely work. 

There are a few additional ideas to hold when messaging to Republicans on criminal justice. 

• Public safety has to be part of the package if you’re talking about a reform. Look at one of the most successful groups in our field, the Alliance for Safety and Justice. 

• People hold complicated views on many issues, and criminal justice is no different: our polling shows that conservatives are much more likely than regular voters to think crime is out of control, and yet, overwhelming think the criminal justice system needs reform, with a smaller majority explicitly believing that too many people are in prison. 

• There is a basic understanding that people coming home should be put in a place to succeed economically, and that can be used to build support for programming.  

• For Republican voters, the most trusted messengers on criminal justice issues are victims of crime and law enforcement, but our polling also showed that the perspective of formerly incarcerated people were trusted as much as a typical Republican politician. 

• For Republican politicians, they want to know that conservative organizations are going to give them political cover for supporting these issues. 

As a messaging aside - Republicans increasingly distrust the very term “criminal justice reform,” and I strive to avoid it in meetings, using it here for the sake of this largely progressive audience. Instead, I might say, “fix our drug sentencing laws” when referring to EQUAL.  

Drafting The Team

If you’re going to win Republican support, you need a coalition that has credible conservative groups in it. Too often on the left, we give lip service to the idea of broad coalitions. I remember five years ago we had an otherwise impressive group working on a state bill, and we called ourselves a “bipartisan coalition.” The trouble was, we were 90% liberals and our conservative partners didn’t have much political juice in the state. Republican legislators can smell that kind of “bipartisanship” from a mile away. 

On the EQUAL, we’ve been proud to work in a coalition with Justice Action Network, Families Against Mandatory Minimums, Prison Fellowship, Due Process Institute, and other groups that cover the center & right side of the political spectrum. We value our partnership with Americans for Prosperity on justice issues, and we’ve been heartened to see Americans for Tax Reform, Faith & Freedom, and FreedomWorks all throw down for reform. 

Supporting Cast: Center directly impacted people may sound like a lefty organizing term, but the stories of people with lived experience are still extremely powerful if your audience conservative. I’ve personally seen the impact of formerly incarcerated people moving Republican legislators and their staffs. President Trump ran an entire Superbowl ad about one of his prison commutations - Ms. Alice Marie Johnson. (Incidentally, that Superbowl ad led to the highest levels of internet conversation around “criminal justice reform” of any moment in the last five years.) Thus, the one part of the gameplan that runs identically for me, regardless of political audience, is organizing and centering the voices of directly impacted people. 

Unlikely Heroes: There are few partners you’d rather have in the room with you lobbying a Republican member of Congress than the National District Attorneys Association (NDAA). The NDAA certainly doesn’t sign up for every criminal justice bill, and given the role of DAs in most places, some on the left might blanche at even working with them on policy. But they’ve gone to bat hard on EQUAL - even enlisting local district attorneys for meetings with legislators. Their message that the bill will “lead to stronger bonds between law enforcement and their community partners” is hard to argue with, given the messenger.

As I wrote in my first post, having a great gameplan is no guarantee of success, and that’s especially true when it comes to Congress. But we’re ready to go all out to get this done in 2023. If we try every sound strategy to win Republican support to bring people home from prison, we may still fall short. What we owe to people behind bars, however, is our best effort.

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Post-Game Analysis: Everything I’ve just written about could go up in flames as soon as the 2024 election cycle. Senator Tom Cotton is a terrible person, but a decent organizer. Like the eye of Sauron, his anti-justice strength grows stronger by the hour. He will be goading DeSantis and Trump to one up each other on brutal rhetoric around law & order, prison, and the death penalty. I’ll be collaborating with partners on the right to stem the bleeding, but it’s possible 2023 is the last year of bipartisan criminal justice reform. All the more reason to lean into it as hard as possible. And for people working on issues other than criminal justice reform, hopefully this example is helpful. 

Working to build actual common ground with conservative partners, identifying Republicans who might have lived experience in your issue area, and customizing your messaging is worth the effort, if it will help the communities you’re fighting with and for. 

Next on the Schedule: Part II of my policing post is very much in the works. Barring any seismic news in the criminal justice space, that’s coming up next. 

Janos Marton is the Vice President for Political Strategy & National Director of the Justice program at Dream.Org. Janos previously ran the #CLOSErikers campaign, managed justice campaigns for the ACLU, and ran for Manhattan District Attorney, among other adventures.