The tendency for Washington DC is to spend most of its time on regular business – the budget, appropriations, tax extenders, etc. – with occasional bursts of interest in major reforms. Understandably these big ticket items are more likely to be taken up when one party controls both political branches of government. For instance, Democrats pushed health care reform, economic stimulus, and financial reform (Dodd-Frank) while in control of the White House and Congress. Such big ticket efforts have slowed considerably since voters chose divided government in 2010.
But large reforms can come out of divided government as well. Reagan’s major tax reforms in 1981 and 1986 both were passed with a Democratic House, while 1996′s welfare reform was passed by Newt Gingrich’s Republican Congress and signed by Democrat President Bill Clinton. So major legislation is possible even in divided government.
Predicting legislation is sort of like reading tea leaves; it’s more art than science. But there are certain indicators that, when taken together, suggest a major legislative effort may be imminent. For instance, when both parties recognize that there is a problem and there exists a reasonable overlap to their ideal solutions, combined with an event or series of events that raises the public profile of the issue, then there’s a good chance that issue will be addressed. Right now, all of those indicators suggest criminal justice reform is on the horizon.
Recognition of serious problems in the criminal justice system spans the ideological spectrum. The left has long had its concerns, though often narrowly focused on issues of race. Libertarians, too, have been consistent in criticizing the excesses of the drug war and the police militarization it has enabled, as well as the appalling practice of civil asset forfeiture. Gross abuse of the latter, which allows police to seize property without ever charging – much less convicting – an individual with a crime, has also contributed to a growing conservative awareness of the need to address the nation’s criminal code and its enforcement.
Conservatives tend to be disposed toward law and order, believing they are reserving sympathy for victims and not criminals. This is fine for the most serious crimes, but law enforcement resources are increasingly being directed toward either victimless crimes and petty offenders, which then tax the prison system and state budgets. But most importantly, conservatives are showing increasing recognition that police are agents of the government and prone to the same incompetence and abuses as other government actors.
The organization Right on Crime has made strong inroads among conservatives in making the case for reform. They are supported by a large group of influential conservatives from across the movement. That includes libertarian-leaning, anti-tax activist Grover Norquest, as well as family values conservatives Ralph Reed and Tony Perkins, among many others. Together, they argue that conservatives “must also be tough on criminal justice spending,” and not just on crime.
Meanwhile, libertarian Charles Koch has trained his sights, and deep pockets, on criminal justice reform, and has stated plans to ramp up his efforts in 2015. Typically treated as a boogie-man by the left, Koch has even forged alliances with the more liberal ACLU and progressive king-maker George Soros to bolster his efforts.
Taken altogether, these groups represent a rare and potent coalition.
It’s worth acknowledging that bipartisanship is not always a blessing. As a saying of debatable attribution goes, “There are two parties in Washington — the stupid party and the evil party. Every once in a while the stupid party and the evil party get together and do something that is both stupid and evil. In Washington, that is called bipartisanship.” Nevertheless, in a divided Congress some manner of bipartisanship is a necessary prerequisite for reform, and in this case it seems to be aimed in a positive direction.
It will take more than just an alliance of insiders, however, to force Washington to act. The public must be galvanized. On this front, a series of major news stories have energized both the grassroots left and right. The Ferguson shooting and the choking death of Eric Garner in New York have motivated the left, and while the facts of the former are contentious, the latter is more widely agreed to be both unjustified and an example of the negative consequences of overcriminalization.
The last year has also seen much wider coverage of the problem of civil asset forfeiture. Once a problem known only to libertarians and civil liberties activists, it hit the mainstream with help from a series of reports by the Washington Post highlighting abusive police confiscations. These clearcut cases of state-sanctioned theft demonstrated police corruption and captured the interest of the right.
When the motivated public is mixed together with an emerging political coalition, the result is a strong likelihood for legislative action.
There are potential headwinds, however. The excessive riots and vandalism by some in response to Ferguson, and the targeted killing of two police officers in New York, threaten to polarize the public and make consensus more difficult. The shooting of police, in particular, has led some conservatives to rally around police institutions and retrench into a reflexively law and order mindset. That’s unfortunate, as one thug’s criminal act shouldn’t overshadow the arguments for reform, which are strong.
Police in America have in a short period of time become both heavily militarized and extremely violent. Between the Section 1033 program and generous grants from Homeland Security, the federal government has encouraged dissemination of military technology to local police departments. It’s not at all unusual today for small town departments to acquire mine-resistant armored troop carriers for which they have no need, or weapons of war such as grenade launchers and M16 rifles.
With access to certain tools comes a desire to utilize them. The Economist reports that the number of armed SWAT raids has grown from 3,000 per year in 1980 to an estimated 50,000 today. Growing reliance on heavily armed raids, even when serving warrants for non-violent offenders, has serious consequences. Raids on wrong addresses or based on flimsy information are common, and even when the right location is targeted, heavy-handed tactics increase the risk for collateral damage.
To make matters worse, accountability in the justice system is hard to come by. Whereas the old saying holds that a competent prosecutor could get a grand jury to indict a ham sandwich, they rarely seem to return indictments against police. Comparable statistics aren’t available at the state level, but federal grand juries indict 99.99 percent of the time, making the frequent refusal to indict police stand out as unusual.
Those in the criminal justice system seem to find the very idea of accountability appalling. When a South Carolina State Supreme Court Justice offered the seemingly uncontroversial opinion that courts should not overlook unethical and illegal conduct on the part of prosecutors, state prosecutors became apoplectic, accusing the judge of bias and asking he be recused from criminal cases, which would effectively end his career. Federal law also protects with immunity even those prosecutors who act maliciously – such as by willfully withholding exculpatory evidence.
No one should be above the law, least of all those charged with its enforcement. If anything, they should be held to a higher standard of conduct than the public. That’s a principle that both the left and right, and everyone in between, ought to be able to get behind. With the 114th Congress now underway, there’s reason for optimism that it might happen.
Don’t miss last week’s column: Government Imposed Net Neutrality Would Choke the Net.
Brian Garst is a political scientist, commentator, and advocate for free markets and individual liberty. He also blogs at BrianGarst.com and you can find him on Twitter @BrianGarst.