Skip to content Skip to footer

“Bipartisan” Criminal Justice Reform: A Misguided Merger

The new Coalition for Public Safety provides cover for a neoliberal agenda.

The Coalition for Public Safety's criminal justice reform agenda quietly emphasizes privatization, deregulation and states' rights, while remaining silent about structural racism and economic violence that fuel the community-to-corrections and school-to-prison pipelines. (Image: via Shutterstock)

Help Truthout keep publishing stories like this: They can’t be found in corporate media! Make a tax-deductible donation today.

A “criminal justice reform” train has been heading down the track for quite some time, and it’s gaining momentum. Over the years some significant power donors, foundations, media pundits, well-known advocacy organizations and mainstream political players have jumped on board.

Where is this juggernaut ultimately headed? Not exactly where its newly minted “bipartisan” front, the Coalition for Public Safety (introduced on February 19, 2015), and the powerful public relations and marketing campaigns backing it suggest.

To see more stories like this, visit “Smoke and Mirrors: Inside the New ‘Bipartisan Prison Reform’ Agenda.”

One hundred and thirty years ago, Frederick Douglass described “the general disposition in this country to impute crime to color.” Fifty years ago, Malcolm X spoke of how the Black community “has been projected as a community of criminals.”

The Coalition’s formation represents a merger of myriad influential ideological, political and corporate interests that will certainly produce some “reforms.” These reforms are predicated on privatization schemes, dominated by the anti-government right and neoliberal interests that more completely merge for-profit medical treatment and other human needs supports with the prison-industrial complex.

The Coalition’s rhetoric and agenda also reinterpret and attempt to tame a longstanding and evolving progressive critique of mass incarceration, police abuse and misconduct, the expansion and privatization of “community corrections” and surveillance, and the structural racism and economic violence that drive them.

Introducing the Coalition

The Coalition brings together, in its own words, a handful of “the nation’s most prominent conservative and progressive organizations” to pursue an “aggressive criminal justice reform effort,” both “pragmatic and non-ideological.”

Coalition partners, characterized in contemporary foundation-speak as “unlikely allies,” include Right on Crime, Americans for Tax Reform, the Faith & Freedom Coalition, the Center for American Progress, FreedomWorks, the American Civil Liberties Union (ACLU) and the Leadership Conference Education Fund. The initiative has initial funding of $5 million from Koch Industries Inc., Laura and John Arnold, the John D. and Catherine T. MacArthur Foundation and the Ford Foundation.

Since the 1980s, the right has played a singular role in the rapid growth of prison privatization.

The Coalition’s simplistic and misleading narrative goes something like this: While Democrats and Republicans remain in acrimonious gridlock throughout the country, a handful of determined organizations can come together across chasms of political difference to make the United States safer while fixing a broken, bloated, too costly system characterized by over-criminalization and unnecessary imprisonment of low-level, nonviolent offenders.

Promising “commonsense” change, the Coalition seeks to build broad support for a series of particular reform measures intended to address what its members characterize as a broken criminal justice system.

But within (one hopes) and beyond the Coalition, there are profound differences – ideological, social and economic – about what’s at stake, how the problems are analyzed and what “solutions” should be offered. After all, even new waves of reform can produce some troubling results.

Analyzing “the Problem”

Coalition partners agree that the US incarcerates an extraordinary number of people – too many – and that people of color constitute about 60 percent of those in jails, prisons and other forms of detention. (This is a recently added talking point for right-leaning and libertarian partners.) Keeping this many people locked up is too costly and not necessary.

The Coalition’s public analysis begins and ends with these monuments to the obvious. The message: By tinkering with the well-intentioned but misguided policies that created it, “the problem” can be fixed. Experts in the field will lead the way with “evidence-based” risk assessment and related policy tools. Without increasing public spending, savvy private interests and nonprofits will come to the rescue.

Lost in this bland and ahistorical assessment is any recognition of the structural foundations of racial, gendered and economic violence that so profoundly determine the very meaning of justice.

Today the same political interests that brought the nation the “Southern Strategy” and the coded race-baiting of “law and order” claim that they are best equipped to reform the criminal legal system.

Also lost is any attention to the formal and informal policing processes that initially funnel the poor and people of color, especially Black people, into the criminal legal system.

For more than a century, these problems have been clearly named.

One hundred and thirty years ago, Frederick Douglass described “the general disposition in this country to impute crime to color.” Fifty years ago, Malcolm X spoke of how the Black community “has been projected as a community of criminals.”

More recently, Angela Y. Davis, Ruth Wilson Gilmore and Beth E. Richie, along with a score of others, have described and documented structural violence – racial, economic, gendered – in policing and imprisonment in excruciating detail. In 2010, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness struck a public nerve. And in 2012, long before the world knew of Ferguson, Eric Garner, Tamir Rice and Black Lives Matter, the Malcolm X Grassroots Committee documented the extrajudicial killing by US law enforcement or security officials of one Black person every 28 hours.

Davis, Critical Resistance and INCITE! took early notice of an emergent “prison-industrial complex” (PIC) that accompanied the phenomenon of mass incarceration. Critical Resistance describes the PIC as “the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.”

None of that is reflected in Coalition analysis. The best they offer is a static acknowledgement that “over-criminalization” and “over-incarceration” particularly affect low-income communities and communities of color.

The Right’s Dominance of Reform Terrain

The current push for “bipartisan” criminal justice reform is a complex story, rooted in the work of the right. But it also has powerful resonance in libertarian and neoliberal ideas about an unfettered free market, deregulation, dramatically reducing the role of the federal government in any forms of criminal justice oversight and intervention, significant tax cuts (especially for people with higher incomes), and expanded privatization of many government functions and public services.

Since the 1980s, the right has played a singular role in the rapid growth of prison privatization, which gained a special foothold and momentum in Texas and Florida where faith-based (conservative Christian evangelical) initiatives proliferated.

The Coalition represents the institutionalization of “bipartisan” political cover for a corporate agenda of reform that is producing an expansion of for-profit community corrections.

In 2006, a new nonprofit organization, The Council of State Governments Justice Center, was created in order to serve local, state and federal policy makers. Characterized as “another ALEC” by progressive activists, its “Justice Reinvestment” initiative is central to the conservative right reform agenda.

In 2010, Right on Crime, the group that has largely dominated the reform agenda, was founded. It is a project of the free market-oriented Texas Public Policy Foundation in cooperation with the American Conservative Union and Prison Fellowship. Endorsed by a host of right-wing luminaries, Right on Crime promotes itself as “the one-stop source for conservative ideas on criminal justice.”

Koch Industries Inc. and other libertarian-right players have signed on as well. So today the same political interests that brought the nation the “Southern Strategy” and Willie Horton, and the coded race-baiting of “law and order” claim that they are best equipped to reform the criminal legal system. Players in the right-libertarian sphere are engaged in aggressive efforts at rhetorical rehabilitation, in order to cast themselves as more compassionate and less ideological. This theme has been heavily worked since last summer, when, at a Koch brothers panel, right-wing “reform” was touted as bipartisan, “uniting left and right.”

Some people now explicitly argue that criminal justice reform is the “GOP’s best hope to reach minority voters.”

The Privatization of Criminal Justice

What is now cast as a significant breakthrough in old right-left political stalemates is illusory. The “left” is nowhere represented in any of these discussions. The Coalition represents the institutionalization of “bipartisan” political cover for a corporate agenda of reform that is producing an expansion of for-profit community corrections and an explicit merger of medical treatment programs with the prison-industrial complex.

This merger will release and divert some “low-level” offenders into community corrections, treatment for addictions and other programs – and in doing so, produce new revenue streams for private companies. Where law prohibits contracts from going directly to for-profit companies, it’s easy to skirt that law. The contracts for service can go to nonprofit organizations that are free to subcontract with for-profit companies.

Government administration of justice, accountable to a larger public, is rejected in favor of “experts” who will diagnose and treat “individual” addictions and illnesses.

In 1970s and 1980s, “treatment” was offered as a genuine alternative to criminalization. The medical model offered a conception of deviance as “sickness” that could be treated rather than punished and so was initially seen as a diversionary alternative to the increasingly harsh punishments emergent in the early years of the war on drugs. Expansion of the model was sparked by the privatization of the addiction treatment industry.

Driven by the escalating quest for profits and new markets, prison profiteers are rapidly expanding into community corrections. Mandated treatment is increasingly a central feature of the legal system. The American Friends Service Committee, Grassroots Leadership and the Southern Center for Human Rights have detailed this business model, which they call the “treatment-industrial complex,” in a 2014 report (PDF).

Under this model, people no longer held in prisons – a larger pool than the incarcerated population – will be housed in mandated (private) facilities – mental health institutions, residential drug treatment centers or halfway houses. Others may be sentenced to home arrest, probation, parole or other profit-making forms of community corrections. Corporations can charge for supervision fees, monitoring equipment, drug testing and counseling. Increasingly, these costs are “offender funded” – transferred to those least able to pay them.

Consequently, the treatment-industrial complex will “ensnare more individuals, under increased levels of supervision and surveillance, for increasing lengths of time – in some cases, for the rest of a person’s life.”

Incorporating the medical model and treatment services into an ever-expanding corrections industry also provides the perfect frame for an unacknowledged ideological agenda. Government administration of justice, accountable to a larger public, is rejected in favor of “experts” who will diagnose and treat “individual” addictions and illnesses.

The Coalition for Public Safety does not identify increasing privatization of prison and correctional services as a concern.

Long-Term Costs of Ill-Advised Partnerships

Because “reform” and “public safety” are elastic, all-purpose concepts that can mean almost anything, for better or worse, Coalition partners should be publicly asking essential questions.

From the beginning, the push for “bipartisan” reform has been characterized by insistence that we “agree on basic concepts” – there are too many people in jail; the costs of incarceration are too great; we want to return low-level offenders to the community – and sort the rest out later.

There is no deep “right-left” or even “conservative-progressive” consensus on how to define the root causes of the problem or its solutions. There is only a public relations consensus.

In 2011, for example, the NAACP issued a report entitled “Misplaced Priorities: Over Incarcerate, Under Educate” that examined escalating levels of prison spending in the United States, and subsequent impacts of reductions in spending on public education in the lives of children. Grover Norquist of Americans for Tax Reform appeared on PBS with Ben Jealous, then executive director of the NAACP, to demonstrate bipartisan support for reducing prison spending. Asked if he agreed with the NAACP that money saved from reducing incarceration ought to be redirected to public education, Norquist deflected, saying that was a “separate discussion” that should be had “another time.”

In truth, there is no deep “right-left” or even “conservative-progressive” consensus on how to define the root causes of the problem or its solutions. There is only a public relations consensus, engineered by several large foundations and organizations, and increasing encouragement from those foundations to become “unlikely partners.” The choice seems to boil down to “get on board” or be “left in the dust.” Those who sound notes of caution and concern are dismissed as disgruntled spoilers.

Yet why would progressives imagine that the story about criminal justice reform will turn out any better than, say “welfare reform,” embraced by neoliberals, libertarians and the right alike, the bleak effects of which continue to ripple through society?

In his paper “Flawed Coalitions and the Politics of Crime,” (PDF) legal scholar David Jaros points out that bipartisanship, for its own sake, can be “dangerous.” Describing a period in the late 1970s when liberals and conservatives successfully joined forces to replace discretionary, indeterminate federal sentencing guidelines with fixed guidelines, he suggests that questions about possible adverse long-term consequences went unasked. By simply assuming good outcomes, liberals undermined many of their own long-term interests and later came to “bitterly regret supporting the reforms.”

The Sentencing Reform Act “ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s liberal supporters.” The result was a catastrophe that fueled mass incarceration and permanently altered the criminal justice landscape.

But surely something like this couldn’t possibly happen again.

Could it?

We’re not going to stand for it. Are you?

You don’t bury your head in the sand. You know as well as we do what we’re facing as a country, as a people, and as a global community. Here at Truthout, we’re gearing up to meet these threats head on, but we need your support to do it: We must raise $50,000 to ensure we can keep publishing independent journalism that doesn’t shy away from difficult — and often dangerous — topics.

We can do this vital work because unlike most media, our journalism is free from government or corporate influence and censorship. But this is only sustainable if we have your support. If you like what you’re reading or just value what we do, will you take a few seconds to contribute to our work?