Bill Keller will soon step away from the New York Times to lead the Marshall Project and save the world, but as a columnist, the opportunity to start early is open to him and he’s already taken his first/parting shot:
I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents — who are also disproportionately the victims of crime — are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.
There is little choice but to begin with excuses, because as President Obama enters the middle of his lame duck term, his criminal justice legacy is, how to say this nicely, underwhelming. If thinking kindly thoughts while doing absolutely nothing were a substitute for action, perhaps we would be in a different place, but it’s not.
Keller’s apologia is nothing new. We all understood the fear of being Willie-Horton’ed driving Democrats to out tough-on-crime Republicans, or having a head as small as Michael Dukakis in a tank helmet (also not a good look). We understand the argument: if you say what you believe, you won’t be elected. If you do what you believe, you won’t be re-elected. So you get elected, then re-elected, but accomplish nothing. Got it.
Except the past few years offered a peculiar political mix coming to the recognition, for their own reasons, that over-criminalization and over-incarceration were a problem in need of a solution. Yet marijuana remains on Schedule I, while only two and a half men were pardoned, and Byrne grants for the drug war keep flowing until every small town police force has a tank of its own.
Keller concedes that President Obama got a slow start, but argues he is picking up steam.
In his first term Obama did not make this a signature issue; he rarely mentioned the subject. But his proxy, Attorney General Eric Holder Jr., was outspoken from the start. Six months into the first term, he was already at the Vera Institute of Justice in New York talking about the social costs of mass incarceration and pressing for policies that would divert low-level drug offenders to treatment and ease the re-entry of former prisoners into a productive life. In the last five years, Holder has become increasingly bold, and encountered little backlash. This month he exhorted states to repeal policies that deny felons the right to vote, policies that disenfranchise 5.8 million Americans, including nearly one in 13 African-American adults. He framed it not just as an act of compassion but as a way of re-engaging prodigal souls.
Somehow, a presidential term got lost in a speech given last month. And then there is the question of exhortations are the same as action, particularly when given by the man whose pen gets to sign off on most of the really bad things the federal government gets to do when it comes to the law. AG Holder hasn’t gotten “increasingly bold” in the last five years, but the last five weeks. Provided by “bold,” you mean talks a good talk while doing nothing different than he ever did.
“All that sounds very good,” said Michelle Alexander, the legal scholar who wrote “The New Jim Crow,” a scorching 2010 indictment of the racialized war on drugs. ”And it is good, because for decades the rhetoric was running in the other direction. But if the rhetoric is not matched with action … then it is fair to wonder whether the shift in rhetoric reflects significant shifts in public opinion in recent years, rather than a real commitment to these issues and a willingness to take political risks.”
Keller notes that President Obama is “a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it,” but that he has three years to go in his final term of office. Based upon Holder’s sudden emergence as the spokesman of moderation for the president, “there is reason to hope that [Obama] will feel less constrained.”
“This is something that matters to the president,” Holder assured me last week. “This is, I think, going to be seen as a defining legacy for this administration.”
The Marshall Project promised to be apolitical. It claimed to be the voice of criminal justice. If a whisper from the Attorney General is all it takes to fill Bill Keller’s heart with promise, it’s doomed.
That there are three years left for the current president to begin to act upon his “defining legacy” means that five years have already been squandered with nothing done during a time when the confluence of political opinion supported changing failed policy.
To put this in more concrete terms, real people are sitting in prison awaiting reform of a system that everybody says is coming. One president, long ago, told us he would put us on the moon by the end of a decade, and we got there. Another president says nothing about criminal law, and he got us there too. And the leader of the Marshall Project is already making his apologies, because the people sitting in prison these past five years don’t matter nearly as much as good excuses.