Glimmer of hope in bipartisan criminal justice reform effort

Washington D.C. has entered a period of stability. Our nation’s capital, once appreciated for its polite collegiality and fertile grounds for periodic compromise, has been transformed into something that closely resembles the lunar landscape.

Witness the recent collapse of GOP efforts to “repeal and replace” the Affordable Care Act. And who amongst us hasn’t heard the full-throated Congressional Democrats’ denouncements of anything with a Trump logo affixed to it. The hardly concealed mission is to simply obstruct and #Resist the agenda of this president. What chances are there for any bipartisan consensus on necessary policy initiatives related to immigration, taxes, and trade? Hope appears to be forlorn.

{mosads}But despite all the evidence to the contrary, there does appear to be a glimmer of hope on Capitol Hill. And it has arrived in the form of an apparent bipartisan criminal justice reform effort.

Now it is worth noting that this effort actually began back in March of 2015, when Senators Rand Paul (R-Ky) and Cory Booker (D-N.J.) introduced legislation to reconstruct the U.S. criminal justice system. The measure was entitled the REDEEM Act, and contained provisions that limited a juvenile’s exposure to incarceration and sealed or expunged records for non-violent offenders. Rehabilitation was stressed for adult offenders and the plan was touted as saving taxpayer dollars, something which appealed to conservatives.

Booker and Paul had worked assiduously back in 2014 on efforts to reform drug-control policies and the system of mandatory minimum sentencing guidelines. Resistance from a number of different corners ultimately led to another surrender by the legislative branch to the executive branch — Barack Obama used executive orders, sentence commutations, and directives to his Department of Justice not to target low-level drug offenders for prosecution.

More than two years have passed since the bill’s introduction. It has languished in the quagmire that currently serves as the legislative branch of our stagnant divided government.

The current version of the bill is being touted by Paul and a newcomer to the difficult business of two-party consensus building, the junior senator from California, Kamala Harris. The libertarian Kentuckian and the liberal former California Attorney General may appear to be quite the odd couple. But appearances can be deceptive. They have collaborated before, back when Paul was fashioning a run at the Republican presidential nomination in 2014 and consulted with Harris on the prison overpopulation problem. They were both concerned with our current bail system that affords great advantage to the wealthy.

One has to credit Senator Paul for refusing to concede to the commonly held belief that absolutely nothing is to be accomplished in the 115th Congress. You also have to commend him for his valor. Successful bipartisan deal-making these days can be but a Pyrrhic victory for politicians whose efforts oft result in the threat of being primaried.

Many of the items related to the proposed bill are reasonable and make sense. Some inequitable aspects of the criminal justice system can and should be addressed, such as the inability of low-income folks to afford bail. Unfortunately, the wealthy have a clear advantage in avoiding pre-trial detention. Lest we forget, Lady Justice wears a blindfold.

But there is something that impedes an honest effort here. There is a canard that gets shamelessly trotted out by some proponents of criminal justice reform and it is deleterious to the movement. The race-baiters and the charlatans — those who profit from the dishonest promotion of “grievances” — maintain that our system of justice is racist. And they will loudly and disingenuously smear all four levels of the system, from law enforcement, to prosecution, to sentencing, and to incarceration.

As a retired Supervisory Special Agent of the FBI, I served in a multitude of leadership positions across a 25-year career. Many of those assignments were in urban areas whose communities were often made up of persons of color. Violence and crime was attendant in almost all of them. Many good citizens who resided therein were terrorized by neighborhood gangs. The illegal drug trade was inherently violent. And the vicious cycle that relentlessly churns between high crime areas and the disappearance of business and commerce and jobs. It’s an age-old story.

But if we are to honestly address and tackle the scourges of crime, hopelessness, and despair in our inner-cities — where much of our prison population emanates from — we must acknowledge that reforms offered by the erstwhile senators are geared to level the playing field for the poor and to acknowledge that children should be treated differently than adults when interacting with the criminal justice system. This makes sense.

But what doesn’t make sense and what continues to impede progress on these reform bills is the promoted calumny that our criminal justice system is racist. African-Americans, some will argue, are overrepresented in America’s prison population. This is true. But this is a result of their disproportionate representation in annual crime statistics like the FBI’s Uniform Crime Reporting that highlights the fact that 13 percent of the population comprise some 52 percent of the arrests for murders per annum. That’s an inconvenient truth. But must be acknowledged if we’re to have an honest conversation about reform. It is not just the system that requires reformation.

And we must also recognize that this overrepresentation of blacks in the prison population is also related to other factors, as opined by noted criminologist Michael Tonry in his 1995 book, Malign Neglect: Race, Crime, and Punishment in America:

“[P]erhaps surprisingly, for nearly a decade, there has been a near consensus among scholars and policy analysts that most of the black punishment disproportions result not from racial bias or discrimination within the system but from patterns of black offending and blacks’ criminal records.”

To ignore this distinction is dishonest and cowardly. We must acknowledge it as we continue to seek solutions to our mass incarceration problem. Senators Paul and Harris are on the right track. Let’s hope that a dysfunctional congress views this as a place for earnest consensus building. And let’s hope that a White House currently under siege from numerous sides and looking for a win, makes this effort a cause célèbre — and a place where conservatives and liberals alike can agree that it is time for the application of some fresh ideas and solutions.

James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He also serves as an adjunct assistant professor at St. John’s University and is a leadership consultant at the Thayer Leader Development Group (TLDG) at his alma mater, the United States Military Academy at West Point. Follow him on Twitter @JamesAGagliano. 

The views expressed by contributors are their own and not the views of The Hill.