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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, and author of The School-to- Prison Pipeline: Education, Discipline and Racialized Double Standards, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice and Considering Hate, is co-founder of CI. Criminal Injustice is published every Wednesday at 6 pm CST.
Beyond the Sessions – Trump Feint
by Kay Whitlock
The public relations gloss-making machine for “bipartisan criminal justice reform” never sleeps.
Now they’re telling us that if it just weren’t – at least potentially – for the exceptional extremism of Jeff Sessions, the demonstrably racist attorney general who never met a “tough on crime” measure he didn’t love and Donald Trump, his bloviating and corruption-permeated boss, we’d all be sitting pretty in the loge seats of ‘bipartisan criminal justice reform.’ Recently, for instance, The Marshall Project, a nonprofit news site devoted to criminal justice reporting, put it this way in a short piece published in collaboration with the The New Yorker: “Left and right came together on criminal justice reform. Then Trump happened.”
It’s a catchy thought, if a slightly misleading headline. (Mainstream liberal nonprofit organizations are hardly “the Left.”) And it’s grimly hilarious if you can take seriously the idea that the heavy-hitters of the libertarian–Right reform leadership might, if necessary, take a principled position against Sessions and Trump on this issue alone. But all the world loves an arch-villain or two. Designated hellhounds heighten the sense of drama, pump the flow of adrenaline, and give us someone easy to be against. All the better when, like Sessions and Trump, they really are scoundrels who openly stoke racism, foment white supremacist antagonisms with “law and order” politics, and consistently champion corporate interests while dismantling any meaningful mechanisms for tending the public good. (The libertarian–Right reform leadership is silent on these pesky issues.)
But fixation on such obvious actors doesn’t serve us particularly well. Intentional or not, it functions as a form of misdirection – the art of the magician, politician, and con artist – by getting us to look here and not there. But we must also look there, which is to say beyond Sessions and Trump. And beyond the belief that everything packaged as “bipartisan reform” constitutes a liberatory step forward without adverse impacts.
Here’s why.
All misdirection, whether employed to dazzle, dupe, or deceive, depends on a simple storyline. Actually, a simplistic one that functionally discourages critical scrutiny and works to focus attention on a single element, not the larger reality. That’s not helpful for progressive justice movements.
Suggesting that Jeff Sessions and Donald Trump constitute the biggest potential obstacles to meaningful criminal justice reform constitutes such a storyline. It rallies people to a cause even as it functionally discourages critical scrutiny of both US history and the complex issues at stake. In this instance, the storyline is that ‘bipartisan criminal justice reform’ can be taken on faith as an untrammeled good simply because it is “bipartisan.” The value of it, in fact, is so great that many politicians across Republican and Democratic party lines must unite, even in the face of possible extreme and unreasonable opposition to work for the greater good. To achieve this wholesome unity, stubbornness and rigidity and suspicion must be set aside.
For example, the joint Marshall Project/New Yorker piece cited earlier, notes a dispute over mens rea reform as an example of unhelpful stubbornness.
Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.
This sounds like different parties, one reasonable, one suspicious, are just digging in their partisan heels over a relatively minor issue, and, in the process, sacrificing the greater bipartisan “common cause.” (Others suggest that while the libertarian-Right position on mens rea is just common sense, opposition to it is cynical and narrowly ideological.)
Koch Industries, well known for its violations of environmental safety regulations and anti-union activism, and other corporate interests are behind the push for mens rea reform, which would set standards of proof so high that it would be all but impossible to hold corporations, other public and private institutions, and white collar executives accountable for demonstrable harm done to others. The refusal of the American Civil Liberties Union (ACLU), the NAACP, and other liberal bipartisan reform partners to go along with federal mens rea reform constituted a rare but welcome show of independence. (Mens rea measures have already gone forward in some states, including Ohio and Michigan.)
I discuss this and other reform issues I believe deserve critical scrutiny in “Endgame: How “Bipartisan Criminal Justice Reform” Institutionalizes a Right-Wing, Neoliberal Agenda.”
In that article, I argue that that the liberal-progressive-Left sector has repeatedly (albeit with the best of intentions) gone along with reform framing, policies, and methods of implementation that ultimately advance a larger Right-neoliberal endgame of deregulation, evisceration of public spending for social programs and civic infrastructure, privatization (in public education and other arenas, not just the criminal legal system), states’ rights, and gutting of the larger federal framework of civil rights and recognition. It does so without confronting historically entrenched patterns of race-based policing and punishment, even as it creates a “shadow” prison system and expands the reach of law enforcement surveillance. It does so without examining the impacts of the global economy and features of racial capitalism that work together to help produce mass incarceration and its shadow manifestations. These features include structural unemployment, economic abandonment of entire geographic areas, increasing poverty in both urban and rural areas, and increasing homelessness.
The framing of “bipartisan criminal justice reform” as a standalone issue, unrelated to these factors and features, constitutes a profound form of misdirection. There’s a lot embedded in “bipartisan consensus” reforms that deserves a deeper look and critical scrutiny. Without that scrutiny, how can we sharpen our strategic analysis and decide on approaches that take long-term as well as short-term impacts into account? How else can we best anticipate tensions, dilemmas, and obstacles? How else can we usefully share our different experiences and insights and questions? The alternative is to settle, unquestioningly, for a set of already-brokered choices and approaches.
Yes, Sessions and Trump constitute real and immediate threats to already marginalized and criminalized communities, and we must respond to those threats. Yes, they have re-energized white nationalists, white supremacists, and patriarchal authoritarians of all stripes. They encourage law enforcement, military, and private security forces to act with (already well-established) impunity against Black, Latinx, Muslim, and Indigenous communities and against anyone who protests or challenges their interests. Under the rubric of “religious liberty,” new assaults against transgender, gender nonconforming, queer folks, and women are gaining new momentum. We can’t ignore this.
But we also can’t ignore the more complex “bipartisan” realities that produce and sustain racialized inequality and race-, class-, and gender-based based policing and punishment. The robust health and well being of historically criminalized communities will never be obtained within the current reform framework which fails to address the structural factors that produce so much harm and channels what little help is available through the criminal justice system and its community extensions.
Some criminal justice reforms being proposed and enacted are useful and some are problematic. But they generally go forward within an austerity framework and by relying on the prison as the essential civic reference point. How do we bring the violence of policing into the discussion, as a central element? How do we challenge the seeming inevitability of the prison as a central organizing structure for US society? How, in practical ways, do we resist embracing “criminal justice” as a useful channel for social assistance and supports? How do we begin closing down US jails and prisons without always keeping resources at hand to expand old or build new ones? How do we challenge the steady community creep of shadow prisons through technology and mandatory, privatized services – the costs of which are often charged to the individuals unnecessarily swept into the system? How do we help organize mass opposition to austerity politics and mount effective challenges to current local, state, and federal governmental and budget priorities?
Even as I engage these questions, I offer them to you. To all of us. Some groups – I talk about some of them in “Endgame” – have been working for a long time to answer them. None of us has the answers right now. Together, over time, if we avoid simplistic storylines and address complex realities, we can create them.
Resources for Seeing Beyond the Sessions-Trump Feint
These essential resources show why and how simplistic, reductionist narratives about mass incarceration can’t equip us to dismantle it or see through polished PR talking points about “bipartisan reform.” They help to provide insight into what we’re really up against what it will take to abolish the prison industrial complex. (Thumbnail descriptions are from or adapted from publishers’, filmmaker, and organizational websites.)
Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California, by Ruth Wilson Gilmore
Since 1980, the number of people in U.S. prisons has increased more than 450%. Despite a crime rate that has been falling steadily for decades, California has led the way in this explosion, with what a state analyst called “the biggest prison building project in the history of the world.” Golden Gulag provides the first detailed explanation for that buildup by looking at how political and economic forces, ranging from global to local, conjoined to produce the prison boom.
Incarcerating the Crisis: Freedom Struggles and the Rise of the Neoliberal State, by Jordan T. Camp
This book traces the rise of the neoliberal carceral state through a series of turning points in U.S. history including the Watts insurrection in 1965, the Detroit rebellion in 1967, the Attica uprising in 1971, the Los Angeles revolt in 1992, and events in post-Katrina New Orleans in 2005. Incarcerating the Crisis argues that these dramatic events coincided with the emergence of neoliberal capitalism and the state’s attempts to crush radical social movements.
Policing the Planet: Why the Policing Crisis Led to Black Lives Matter, edited by Jordan T. Camp and Christina Heatherton
Combining firsthand accounts from activists with the research of scholars and reflections from artists, Policing the Planet traces the global spread of the broken-windows policing strategy, first established in New York City under Police Commissioner William Bratton. It’s a doctrine that has vastly broadened police power the world over—to deadly effect.
The Prison in Twelve Landscapes, a documentary film by Brett Story.
More people are imprisoned in the United States at this moment than in any other time or place in history, yet the prison itself has never felt further away or more out of sight. The Prison in Twelve Landscapes is a film about the prison in which we never see a penitentiary. Instead, the film unfolds as a cinematic journey through a series of landscapes across the USA where prisons do work and affect lives, from a California mountainside where female prisoners fight raging wildfires, to a Bronx warehouse full of goods destined for the state correctional system, to an Appalachian coal town betting its future on the promise of prison jobs.
Prison Policy Initiative: Mass Incarceration – The Whole Pie 2017, by Peter Wagner and Bernadette Rabuy
This report offers some much needed clarity by piecing together disparate US systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. PPI also provides further detail on why people are locked up in all of those different types of facilities.
Critical Resistance: Resources
Formed in 1997, Critical Resistance seeks to build an international movement to end the Prison Industrial Complex by challenging the belief that caging and controlling people makes communities safe. Rather, basic necessities, such as food, shelter, and freedom are what really make communities secure. CR provides excellent resources within an abolitionist framework.
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