In the late 1970s, many people studying and working inside criminal justice institutions in the US felt that they had awoken to a whole new world. Everything suddenly seemed different: rampant talk of “rehabilitation” had been replaced with politicians shouting about locking up “super predators.” Across the country, states’ prison systems swelled to capacity—and well beyond—as police, prosecutors, and judges enacted “tough on crime” policies. This was not the first time those paying attention to criminal justice felt the world had shifted suddenly and irrevocably under their feet—and not always in the direction of harsher punishment. Indeed, just a few decades earlier, in the wake of World War II, many reformers and those working inside newly dubbed “corrections” departments believed they could transform prisons, probation, and parole into therapeutic communities that provided individualized treatment. At the time, advocates of the punitive status quo worried that liberals were trying to “coddle” criminals and wreck havoc on the system.
Today, criminal justice advocates, bureaucrats, policy-makers, and scholars are anxious as the world rotates once again. What looked like a formidable new movement toward moderating the penal system has increasingly given way to law-and-order redux. Trump’s appointment of Jeff Sessions as Attorney General has emblemized this trend, with Sessions helming a series of Department of Justice reversals including halting federal consent decrees with local police departments and dismantling the nonpartisan National Commission on Forensic Science. The recent hiring of former prosecutor Steven H. Cook to “bring back” the war on drugs continued this trend. Among Cook’s worst ideas are a crackdown on marijuana and the end of Obama-era decisions to scale-back harsh sentences for low-level, non-violent drug offenses.
Pessimism in the face of these regressive (and, in some cases, deeply unpopular) decisions is understandable. In addition, this account of rapid and immediate change fits a narrative popular in the press and among academics: that U.S. criminal justice swings like a pendulum, moving rapidly and completely between harsh punishment (focused on retribution) and more lenient treatment (focused on redemption or reformation). In this view, Trump’s election represents a swing of the pendulum back to the punitive side of the ledger.
Despite the popularity of this metaphor, it obscures more than it reveals. The pendulum metaphor hides the long history behind such changes and over-states the degree of coherence in criminal justice practices at any given place and time. Punishment has always been both punitive and ameliorative, with shifts propelled by ongoing political contestation that shapes penal policies and practices on the ground—often in ways that go against declarations from the White House, Congress, and State Houses. Rather than a sudden “swing,” criminal justice change is the slow, often piecemeal result of this multi-faceted struggle. Thus, those seeking a more moderate criminal justice system should not give up hope Consider mass incarceration, which many scholars and policy-makers see as a critical swing of the pendulum. The prison boom of the late 20th century didn’t occur overnight: politicians, activists, and interest groups fought for harsher punishment and slowly built institutional and political capacity over decades. Even as treatment-oriented bureaucrats and policy-makers gained political dominance in the 1950s and ‘60s, those who favored tough punishment retained significant power inside prisons—including guards and administrators who thwarted the implementation of liberal reforms. At the same time, conservative lawmakers accrued power, steadily pushing for longer prison sentences and less judicial discretion. Eventually, this diverse coalition had paved a path for the “tough on crime” sentencing policies, prosecution practices, and policing patterns that fueled incarceration rates in the 1980s and ‘90s.
Similarly, the ongoing fight against the punitive build-up has long been underway. Groups like the Sentencing Project and Families Against Mandatory Minimums have worked for decades to promote progressive sentencing reform, for example, while academics and legal advocacy groups have long challenged practices like the expansion of solitary confinement. Even in the 1980s and ‘90s, punitive decades of fiscal austerity and over-crowded prisons and jails, correctionalists continued to fight for rehabilitative programs inside prisons—winning key concessions. At the same time, scholars, policy analysts, and journalists documented extreme racial disproportionality in imprisonment, as well as the “collateral consequences” affecting prisoners’ families and communities. While such efforts rarely made the headlines in the late twentieth century, they eventually gained bi-partisan traction in the context of the Great Recession and historically low crime rates.
Today is no different. Trump’s administration will be able to make important changes (rolling back federal sentencing reform, increasing federal prosecutions for drug and immigration-related offenses, expanding federal private prisons, and the list goes on). But they can no more end criminal justice reform than a Democratic president could have “ended” mass incarceration from the White House. Policy-makers, police and corrections leaders, prosecutors, judges, advocacy groups, and everyday citizens will continue to fight (as they always have fought) for a more moderate, humane, and rational criminal justice system.
We can see evidence of these successes in the number of progressive prosecutors who won recent elections and the increasing power and voice of groups like Law Enforcement Leaders to Reduce Crime and Incarceration. We see it also in the resistance of local authorities (in Baltimore and elsewhere) against Sessions’ attempt to halt police reform. Their efforts won’t kill Trump’s regressive criminal justice agenda, but they will collectively blunt the administration’s impact and even create unexpected positive reform at every level.
In short, criminal justice will continue to transform (often in contradictory directions) under Trump. The grinding political and legal struggle we’re seeing now throughout the country will drive such change—even when it’s buried below headlines declaring that the “pendulum” has swung away from reform and rehabilitation. The history of criminal justice gives us hope: together, citizens, advocacy groups, and policy-makers can resist the second coming of retributive “law and order” and push for a safer and saner system. We always have.
Featured image credit: Donald Trump, by Gage Skidmore. CC0 Public Domain via Wikimedia Commons.