A number of critical justice reform advocates are taking Sen. Bernie Sanders to task for what Leon Neyfakh of Slate called “an absurd promise he has used several times before: that by the end of his first term, the United States will no longer be the world leader in incarceration.”
Sanders made this promise at last night’s Democratic debate and if you take it literally, it is indeed absurd. The United States has around 2.3 million people in jails and prisons, more than 600,000 more than the country with the second biggest population of incarcerated citizens, China with around 1.7 million people behind bars. (If you look at the per capita numbers, the U.S. has around six times the incarceration rate as China.) So Sanders is promising to reduce the number of incarcerated citizens by around 600,000 people by 2020.
Lots of disputes between Sanders and Hillary Clinton, who don’t actually have all that much policy difference between them, comes down to what is actually achievable in the political process and the best tactics to reach those achievements. So one way of thinking about Sanders’ promise is to note that Republicans in Congress are actively trying to water down an already fairly tepid criminal justice reform bill impacting federal prisons and sentencing practices, and that the bill is probably doomed thanks to the Gang of Demagogues led by Sen. Tom Cotton. Under the circumstances, do Democrats need a pragmatic political operator who will fight tooth and nail for incremental progressive change? Or a political revolution that will engage the people to demand radical change — to redefine what is politically possible over the next four years? Arguably, that’s precisely the big question that the Democratic primary is all about!
But the issue with Sanders’ promise on mass incarceration is more particular than the ongoing dispute over whether Sanders is too pie in the sky or Clinton is too tepid. Around 90 percent of those incarcerated in the United States are in local jails or state prisons. There’s not a whole lot that can be done on the federal level about that, even if we have a President Bernie Sanders. Federal prisons only incarcerate about 210,000 people. That’s the sliver of the pie that the federal government actually have control over. Even if Sanders literally found a way to free every single person in federal prison (and obviously that’s not what he, or anyone, is suggesting!), the U.S. would still be the world leader in incarceration by a wide margin.
It’s true that the president has a “bully pulpit” from which he can say inspiring things that set the tone for officials working at all levels of government. It’s also true that in theory, the federal government could try to bribe state governments to rely less on incarceration. But the bottom line is that the feds can only set policy for their own prison system and that means there’s a very low ceiling on the amount of progress that a president, no matter how ambitious he or she is, can do to reduce the prison population. … If Sanders wants to release [600,000 people] by 2020, he’s going to have to break them out personally. If he has a more efficient approach in mind, he needs to share it before he makes this ridiculous promise again.
One way of thinking about it is that Sanders sometimes makes promises that critics say are politically impossible in practice; in this case, he’s making a promise that is mathematically impossible.
I’m of two minds on this. On the one hand, there is real value in clearly articulating long-term goals in a presidential campaign. Many citizens are more politically engaged during these high-profile campaigns than they are during the slow machinations of Congress. A campaign should not merely be about diagramming what is politically possible. From the left wing of the Democratic party, Sanders speaks boldly about where the country ought to be. If he can draw more attention to the problems of mass incarceration in this country — and force Hillary Clinton to talk about these issues more — that’s a good thing. Soaring campaign rhetoric and even unrealistic promises may help him do that.
On the other hand, a number of criminal-justice reform advocates are expressing fear that this particular promise isn’t just unrealistic, it’s actually misleading people about the scope of the problem and what needs to happen if we ever hope to address it.
Sanders promised reduction of prison pop is not only impossible, but as @JohnFPfaff points out, actually misleads ppl about the problem.
— Christopher Hayes (@chrislhayes) February 12, 2016
John Pfaff, the Fordham Law School professor and expert on criminal justice reform referenced in the tweet above, wrote on Twitter:
What makes Bernie Sanders’ “free the prisoners” pledge so peculiar is how UTTERLY impossible it is. Usually outlandish proposals at least have some sort of dubious study to justify them. But this claim has literally nothing to back it up. Not just numerically implausible but constitutionally impossible. It’s not like there aren’t far more viable, meaningful claims to make.
Pfaff argues that vague “magic wand” proposal are particularly pernicious in criminal justice reform. That’s a point worth keeping in mind here. There has been a real cultural shift in Americans’ attitude about mass incarceration. You can spend five minutes on Google and find impressive support in any number of public opinion polls in recent years for criminal justice reform, or for radically ramping down our doomed War on Drugs. There is strong support for criminal justice reform across the political spectrum, including right-wing advocates like the Koch brothers. The question is how. The problem is thorny and complicated and demands a long, sustained slate of reforms across every level of government. It probably counts as progress that empty “tough on crime” platitudes now have less political juice than “criminal justice reform” platitudes (certainly in the Democratic primary and at least in some GOP circles too). But that momentum is useless without a specific (and realistic!) plan of action.
For an article I did last year, I interviewed Piper Kerman, the criminal justice advocate who wrote “Orange is the New Black,” which inspired the television show of the same name. “It’s time to stop talking about the nature of the problem and start talking about the nature of the solutions,” she told me. And she stressed how important it was that people understand that the most of the key decisions impacting mass incarceration are happening in local court houses and in state legislatures:
There’s been a lot of discussion about federal reform because it’s so badly needed. But the truth of the matter is that the vast majority of decision-makers in terms of harsh sentencing, fair sentencing, access to counsel for poor defendants — those decisions get made at like the county level. County elected officials like prosecutors — and many judges in this country are elected — are making those decisions about how someone is going to be charged, if someone is going to be charged, how they’re going to be charged, how they’re going to be punished. That is a systemic and structural question that really merits a lot of attention. It has to be this very localized approach.
Another criminal justice activist I spoke with for the article, Mike de la Rocha, echoed this point, worrying that too much attention to action at the federal level would distract people from the root, and scope, of the problem:
Most people in America don’t know that 90 percent of the problem is in states and local municipalities, it’s not on the federal level. My biggest fear right now is what’s going on in Congress is being hailed as monumental, groundbreaking — that’s a half truth at best. There’s no incentive for states to do things differently.
The structural challenge here is that things like prosecutorial discretion, or the sentencing practices of individual judges, simply don’t get a lot of public scrutiny. Decisions that lead to massive expenses for taxpayers are relatively opaque in the local political process. The chickens never come home to roost for the publicly elected officials who are packing our jails and prisons.
Given the structural dynamics of the problem, I think there’s a fair argument that outlandish promises of what Sanders will do as president aren’t so much advancing the argument for criminal justice reform as obscuring the challenges. Ironically, Sanders — given his political theory of change, heavily rooted in grassroots community organizing — is uniquely suited to speak about the extremely localized roots of mass incarceration. He’s uniquely suited to speak about how efforts for change on this front will ultimately have to come from the bottom up.
Here’s Jamelle Bouie of Slate:
More from Bouie on Twitter:
Last night, I wrote that presidents try to keep their promises. It’s true. And it is also why candidates tend to temper their rhetoric. I think there is value in Bernie Sanders making broad claims about prison reform, health reform, etc. Brings issues into the mainstream. By the same token, however, Sanders isn’t a protest candidate. He’s a legit contender for the White House. These claims aren’t costless. Each one is a promise that, as president, he’ll shoot for it in one way or another. Which brings us to his promise to free 100s of thousands of people from prison. It is literally impossible to keep. And here’s the thing: You don’t get points for making huge claims and failing to follow through. The “Overton window” is overstated. Instead, you set yourself up for failure and discourage or possibly even alienate your supporters. President Bush tried to privatize Social Security. It was his conservative moonshot, and it helped crash his second term. Sometimes small goals betray fear or cowardice. But sometimes they reflect wisdom and an awareness of constraints.
I’d argue that the most refreshing part of Sanders’ candidacy is that he attempts to clearly and honestly articulate the scope of the nation’s problems and challenge Americans to envision a better country. Here, by offering a promise he can’t keep, he understates the scope of the mass incarceration problem and risks merely pandering.