As its title suggests, this post focuses on some revolting developments perpetrated by the Republican Party in a number of states. But let’s start with something positive. The other day I was feeling pretty good while reading an article about newly elected progressive district attorneys who are reforming criminal justice practices down at the local level. They are working hard in places ranging from Brooklyn to Philadelphia to Kansas City to multiple large cities in Texas, and are counteracting the worst effects of our mass incarceration policies.
The article’s authors are Emily Bazelon, journalist and senior research fellow at Yale Law School, and Miriam Krinsky, executive director of Fair and Just Prosecution, an organization that “brings together newly-elected local prosecutors as part of a network of leaders committed to promoting a justice system grounded in fairness, equity, compassion, and fiscal responsibility.” Bazelon and Krinsky cited a number of steps these reform-minded prosecutors have taken, and laid out a list of ideas that, taken together, provide a blueprint for progressive prosecutors going forward. The full document is here (it is well worth a read), and the two offered a summary in the article:
Our recommendations begin with the premise that the level of punishment in the United States is neither necessary for public safety nor a pragmatic use of resources. Prosecutors can address this first by routing some low-level offenses out of the criminal justice system at the start. For the cases that remain, they can help make incarceration the exception and diverting people from prison the rule...Finally, prosecutors should recognize that lengthy mandatory sentences can be wasteful, since most people age out of the period when they’re likely to reoffend, and also don’t allow for the human capacity to change.
As prosecutors know, locking people up makes them more prone to committing offenses in the future. They can lose their earning capacity and housing, leaving them worse off, often to the point of desperation. And so the community is often better served by interventions like drug or mental-health treatment, or by restorative justice approaches, in which a person who has caused harm makes amends to the victim. In some cases, the best response is to do nothing.
There’s a lot of good stuff here. We’re talking about taking positive steps on an issue of vital importance. And maybe, just maybe, there will also be some more positive, if incomplete, steps taken at the federal level as well, as Senate Majority Leader Mitch McConnell has finally announced that a bill to change sentencing practices will get a vote this month. The bill is likely to pass and become law. It actually has Trump’s support, and this analysis explains why that’s the case (short answer: he thinks it will help the economy). Taken all together, making our criminal justice system more just, not to mention more effective, appears to be on the horizon.
Then I remembered what’s happening in Wisconsin and Michigan.
But wait, you’re thinking, that has nothing to do with criminal justice reform. I know, I know. Bear with me. The aforementioned article celebrated five big cities in Texas that have recently elected progressive district attorneys. Well, what’s to stop the state government there—dominated by conservative Republicans—from being just as sore loser-ish as their GOP counterparts in Wisconsin and Michigan, and trying to undo those municipal-level progressive victories in one way or another?
I don’t want to give them any ideas (I’m sure they can figure it out for themselves, if they are so inclined), but, as Bazelon and Krinsky noted, local prosecutors have “broad discretion” on prosecution, sentencing, bail, etc. Republican-dominated states could undermine, weaken, or simply strip away that discretion in all sorts of ways.
Republicans at the state level could also redraw the electoral boundaries by which prosecutors are elected. If they can “crack” districts for gerrymandering purposes, why wouldn’t they crack them so that, instead of a liberal city electing a progressive DA, the city’s constituents are divided up and combined with surrounding areas that may not want a progressive approach to prosecution. In such a scenario, those people arrested and prosecuted in the city could have their fates determined by officials elected by voters who have little to no contact with or investment in those communities or neighborhoods most affected by both crime and mass incarceration.
These kinds of Republican sore loser power grabs didn’t start this fall with Wisconsin and Michigan, or even with North Carolina two years ago after a Democrat won the governor’s race in that state. Remember when cities passed progressive laws ranging from protecting LGBT folks from discrimination, to minimum wage hikes, to laws protecting the environment, and then, time and again, conservative state governments took away the authority of those municipalities to pass such laws? That’s another kind of sore loser power grab, one based on the same anti-democratic principles. And that set of power grabs shows that state level Republicans have absolutely no qualms about asserting state power and denying it to local authorities.
“It’s interesting, Republicans generally tend to be for the devolution of power to state and local levels,” says Andrew Taylor, professor of political science at North Carolina State University in Raleigh. “And then ... in North Carolina and other states, for example, you see Republicans not doing that – in this case, overruling city ordinances.”
Republicans can’t undermine progressive prosecutors everywhere, of course. But in the states where they do exercise power, they have a long track record of taking whatever steps they can get away with toward the goal of consolidating their control over the lives of the people who live there, as well as changing the rules to make sure they continue to exercise that power even when they don’t win a majority of votes.
You can call these actions hypocrisy or lack of principle. Whatever you call it, there’s no question that they are dangerously corroding our democracy.