Tough or smart on crime? The paradox of criminal justice reform | Fletcher McClellan and Amanda Hafler

(Flickr/Matthias Müller)

By Fletcher McClellan and Amanda Hafler

Following widespread protests this year over the police killings of Breonna Taylor and George Floyd, the presidential candidates accused each other of being both too soft and too hard on crime.

President Donald Trump has called himself a “law and order” leader, criticizing Black Lives Matter as a “symbol of hate,” and falsely accusing his Democratic opponent, former Vice President Joe Biden, of wanting to “defund the police.”

At the same time, Trump touted his leadership in the enactment of the First Step Act in 2018, which permits early release of federal prisoners. He denounced Biden for sponsoring the 1994 crime bill that targets drug offenses and lengthens sentences for many federal crimes.

In response, Biden slammed Trump for dismantling Obama administration reforms, including an end to federal prison privatization and consent orders with dozens of police departments to reduce discriminatory policing. Biden pointed out violent crime has risen since Trump took office.

Rather than “defund” the police, Biden proposed additional funds to promote police reform at the state and local levels. He would also create a $20 billion grant program to encourage states to reduce incarceration. Moreover, Biden promised to direct any savings from a reduced federal prison population toward education and social services.

The Trump-Biden exchange on criminal justice reflects a decades-long tendency of politicians to straddle a “tough-on-crime” approach emphasizing longer prison sentences without judicial intervention with “smart-on-crime” provisions for crime prevention and rehabilitation of prisoners.

Rising crime rates and urban unrest in the 1960s led President Lyndon Johnson to declare a “War on Crime” within his Great Society.

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Throughout the 1970s and 1980s, public support grew for tough-on-crime measures such as the “War on Drugs” launched by President Richard Nixon, mandatory minimum sentences, and “three-strike” penalties.

Focusing on the allegedly lenient policies of his Democratic opponent, Gov. Michael Dukakis of Massachusetts, Republican Vice President George H.W. Bush made crime a central issue in his successful race for the presidency in 1988.

At the same time, according to Elizabethtown College graduate Amanda Hafler’s study of newspaper coverage of the crime issue during a five-month period in 1985, there was considerable discussion of smart-on-crime programs such as community policing, drug treatment, and prison reform.

Hafler, who holds a bachelor’s degree in legal studies and a master of public policy from Elizabethtown College, is the co-author of this piece.

The tough-on-crime narrative dominated national discussion in the 1990s, Hafler’s research showed. Determined to show Democrats were pro-law enforcement, President Bill Clinton pushed for legislation adding 100,000 cops, expanding the federal death penalty, setting a three strikes policy for repeat offenders, and funding more state prison cells.

Critics of the 1994 crime bill, formally titled the Violent Crime Control and Law Enforcement Act of 1994, cited the law as a primary cause of mass incarceration, which peaked in the 1995-2005 period.

However, Biden argued the cause of rising imprisonment was state-based tough-on-crime policies. It is true that state and local prisons house the vast majority of inmates.

Additionally, Biden claimed the law was not only about strict punishment. It contained the Violence Against Women Act. Moreover, it banned assault weapons for ten years, which reduced the number of mass shootings during that period.

Furthermore, increased funding in the bill for social welfare drew criticism from Republicans, led by U.S. Rep. Newt Gingrich of Georgia, who called it “social pork.”

Therefore, it can be argued that the 1994 crime bill was an unwieldy attempt to intertwine the tough-on-crime and smart-on-crime models, giving both political parties – especially the Democrats – political wiggle room.

By 2005, however, mentions of both sides of the crime issue declined according to Hafler, subsumed by concerns over international terrorism and white-collar crimes such as the criminal conviction of lifestyle guru Martha Stewart.

This set the stage for the ascendance of the smart-on-crime narrative during the Obama administration. Books and articles on racial inequities in criminal justice increased as the BLM movement emerged. Condemnations of excessive punishment and prison overcrowding appeared.

Advocated by a diverse coalition that included social justice activists, the Koch Brothers, the ACLU, and anti-tax groups, federal and state governments in the 2010s enacted laws on sentencing reform, early release, and “second chances” for nonviolent prisoner reentry.

Now, there is more attention to criminal justice issues than at any comparable time in the past four decades. As the presidential campaign indicates, both the tough-on-crime and smart-on-crime narratives are prominent.

However, as the sociologist Patrick Sharkey argues, by focusing mainly on crime and criminals, neither approach calls for the kind of community reinvestment needed to tackle underlying causes.

As a result, despite bipartisan commitment to criminal justice reform, no one has yet offered a way to break out of the tough-or-smart bind.

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College, in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may follow him on Twitter @McCleleF. Amanda Hafler holds aa bachelor’s degree in legal studies and a master of public policy from Elizabethtown College.