How Criminal Justice Reform Became The Least Controversial Issue In The 2016 Presidential Race


Likely 2016 candidates on the left and right are sharply divided when it comes to how best to address a host of issues, including income inequality, education and healthcare, all of which will be contentiously debated for the next year and a half. But on criminal justice reform, candidates on both sides of the aisle may find common ground.

As the candidates have begun shaping and promoting the policies they would advocate from the White House, members of both parties have proposed similar initiatives for fixing the broken criminal justice system, once a contentious campaign issue. But 2016 potentials this year are showing how far they have moved from the days of their “tough on crime” messaging.

One Republican in particular provides a clear picture of the softening rhetoric. Sen. Rand Paul (R-KY) is arguably one of the more conservative potential contenders — he is “100% pro-life” and has said Social Security disability recipients are “gaming the system” — but he has distinguished himself as a vocal advocate of the same criminal justice reforms supported by some of his most liberal colleagues.

During his time as senator, Paul has advocated for reducing mandatory minimum sentencing, lessening penalties on juvenile defenders and removing some of the policies that perpetuated the failures of the war on drugs. And according to experts, Paul’s support for fixing the broken U.S. criminal justice system is likely to encourage other Republican candidates to make criminal justice reform a more central policy issue in their campaigns.

Robert Weisberg, a professor at Stanford Law School and the co-director of the Stanford Criminal Justice Center, told ThinkProgress that Paul will not be alone in advocating for criminal justice reforms which have recently had bipartisan support in Congress.

“Paul might turn out to be fairly representative of the Republicans in this,” he said. “If his opponents are extreme evangelical, non-libertarian conservatives, they’ve got a religious reason to go along with him. If his major opponents are the so-called centrist establishment people like [Jeb] Bush, I don’t think they gain much advantage in demagoguing criminal justice at this point.”

As support for criminal justice reform gains in popularity on both sides of the aisle, Paul has made efforts to “connect his brand” with the broadly supported policies, said Nicholas Turner, director of the Vera Institute for Justice.

“That being said, it seems likely you would find imitators or others who recognize the value of this approach,” Turner told ThinkProgress.

But while Paul might be the most vocal Republican contender advocating for these reforms, Turner said conservatives have acknowledged the need to reduce incarceration for years and Weisberg said the “political phenomenon” of conservatives becoming reformers on criminal justice has been occurring for the last decade.

“I think that he is a particularly visible manifestation of the broader embrace of the need to reduce incarceration,” Turner said.

Paul and other 2016 contenders’ messages stand in sharp contrast to the criminal justice policies advocated by presidential candidates in the recent past. Former President Ronald Reagan repeatedly spoke about the country’s “crime epidemic” and urged lawmakers to get tough on crime. “Every moment wasted is a moment lost in the war against crime,” he said in a 1982 radio address. Reagan signed the Anti-Drug Abuse Act, which approved an additional $1.7 billion for the war on drugs, and instituted mandatory minimum sentences, policies which caused prison populations to explode.

In 1988, George Bush’s infamous Willie Horton campaign ad attacked Democratic candidate Michael Dukakis for opposing the death penalty and allowing convicted murderers like Horton to have “weekend passes” from prison. Horton became a symbol for the Republican attack on Democrats’ perceived “soft on crime” stance at the time. But in his 1992 campaign, Bill Clinton adopted some of the Republicans’ messaging and criticized Bush’s inaction on crime. “I want to be tough on crime and good for civil rights,” the then-Governor of Arkansas said. “You can’t have civil justice without order and safety.”

Since the “tough on crime” political campaigns of the 1980s and 1990s, politicians have come to realize there is no advantage left in appealing to Americans’ racial biases which propelled criminal justice policies of the past decades, Weisberg said. The declining crime rate took the topic out of the national conversation and now even conservatives like Paul have recognized that the U.S. is spending too much money on locking too many people up for too long, with little effect on crime and a detrimental impact on families and neighborhoods.

Despite the data, many conservatives still say the tough on crime policies did their job. “Crime was out of control in the 70’s and 80’s and it made a lot of sense at the time to lock up more people for longer periods of time,” John Malcolm, director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told ThinkProgress. “But crime has fallen fairly steadily since the mid 90’s… and prisons, while important in terms of crime prevention and keeping the public safe, are a very expensive way of addressing the problem and may not be the best way of addressing the problem.”

Though Paul has recently established himself as a vocal criminal justice advocate, he has been more quietly pushing for reform since the start of his political career. As the chairman of Kentucky Taxpayers United in 2000, ten years before he entered Congress, Paul said in a TV interview that “the war on drugs is an abysmal failure and a waste of money.” After he launched his campaign for Kentucky’s open Senate seat in 2010, Paul continued that messaging and emphasized the importance of rehabilitation over punishment.

“It used to be that criminal justice wasn’t subjected to any kind of cost-benefit rationality,” Weisberg said. “It was seen as almost a moral imperative — doesn’t matter how much it costs, just put them away. But Paul is saying ‘well, I’m attacking all kinds of other government programs. Why not this?’”

Politicians have moved toward embracing criminal justice messaging as the public has also grown to support reforms. According to a 2014 survey, two-thirds of Americans believe the government should focus on treatment for illegal drug users rather than jail time. The study found that Republican support for treatment rather than prosecution is just slightly lower than Democrats at 51 percent. And states have been moving forward with reforms to drug sentences even as the federal government is slower to take action.

“You’ve got some very conservative governors who have been really at the vanguard of pushing criminal justice reform,” Malcolm said. “There has been a bit of a paradigm shift among conservatives in that you end up having some of these Republican governors in red states who are not only pushing criminal justice reform but when they ran for reelection, they ran on that issue and it did not come back to haunt them and in fact it probably helped them.”

Paul has encouraged lawmakers to work together to pass legislation he has proposed which generally have bipartisan support and lead to “some strange bedfellows,” Malcolm said. Last year, Paul worked with Sen. Cory Booker (D-NJ) to introduce the REDEEM Act which would encourage states to raise the age of criminal responsibility, limit the use of solitary confinement on children and automatically seal juveniles’ criminal records if they committed nonviolent acts.

According to Turner, 2016 candidates will want to be able to tell a narrative of working with those across the aisle to create meaningful reforms, and criminal justice may be an easy area in which to do that. “On both the left and right, there’s a great deal of sincerity and commitment,” he said.

Paul’s move may also be strategic — his support for criminal justice reform is likely to help him court African American voters, while his support for legalizing medical marijuana will serve as an advantage in attracting young voters.

Likely Democratic candidate Hillary Clinton has also embraced the public’s support for reform. Following the grand jury decisions not to indict the police officers who killed Michael Brown and Eric Garner, Clinton spoke out about the need to address racial discrimination in the justice system. “The United States has less than 5% of the world’s population, yet we have almost 25% of the world’s total prison population,” she said at a conference in December. “It is because we have allowed our criminal justice system to get out of balance.”

The same day, Paul, who has criticized Clinton numerous times in the past, said in a CNN interview that he “would welcome Hillary Clinton” if she wanted to work with him on his criminal justice proposals.

While Weisberg said other conservative candidates will follow Paul’s lead, there are some areas in which Republicans will still support harsh penalties. “They will be very tough on terrorism but they’ll separate domestic crime to some extent,” he said.

Paul also introduced legislation last term that would restore voting rights in federal elections to nonviolent felons, but Weisberg said that other conservative candidates are less likely to share Paul’s opinions on that reform. “I think he will be a bit more of an outlier on that.”

But Turner said the disenfranchisement issue plays into the bigger picture of rehabilitation for former felons which Republicans have and will continue to support.

“I think there is growing consensus that the negative consequences of arrest and incarceration — disenfrachisement is one piece — are broadly acknowledged by the left and the right as being an important issue,” Turner said. “This sense of creating a second class of citizens will, I believe, be a topic in the 2016 election.”