Criminal justice reformers' fatal blindspot: What supporters of mass incarceration get that opponents don't

GOP lawyer is thwarting reformers. Why? Because he knows that in a democracy, winning the argument's not enough

By Elias Isquith

Published July 30, 2015 2:12PM (EDT)

  (<a href=''>MoreISO</a> via <a href=''>iStock</a>)
(MoreISO via iStock)

Due to a constellation of forces, it can sometimes feel like American society no longer includes a so-called mainstream. The nation has no figurative town center, in other words; no imaginary plane where Americans from all backgrounds go to understand their fellow citizens. To be fair, there’s probably more than a little nostalgia behind this sentiment, and we’re probably mourning the loss of something we never entirely had in the first place. Still, it’s hard to deny that we are increasingly balkanized, and that e pluribus unum is often more aspiration than fact.

I am far from the first person to notice this disconnect. But when Americans talk to one another about our mutual incomprehension, we tend to understand the issue as being one of ideology or partisanship. Those phenomena are obviously influential, but they’re usually a consequence of larger divisions, most especially class and race. Either way, though, the result is a country where two people who grew up in the same town, were educated by the same school district, and pledged allegiance to the same flag effectively live in different universes. And it can be hard to remember that because of this, our definitions of “everyone” are frequently not the same.

What I’m trying to say (at the risk of being long-winded) is that I think conservative legal scholar and vocal criminal justice reform opponent Bill Otis is right in a limited-but-crucial way. Because while I think Otis’s views on criminal justice are wrong enough to be borderline abhorrent, his general criticism of the reform movement — or at least the version presented in this profile from Slate — is correct. Reformers have indeed accomplished much less so far than the media seems to think; and the mistaken assumption that the debate is over, and that everyone agrees that the reformers have won, is the result of a class-based parochialism.

I’ve made this argument already, but it bears repeating: If the criminal justice reform movement does not move beyond the its current, fundamentally conservative public relations strategy, it will fail. A campaign that focuses almost exclusively on the fiscal wastefulness of mass incarceration is a campaign built with a foundation of sand. In the context of a decades-long decrease in violent crime, avoiding the thornier issue of the rights and humanity of the incarcerated makes plenty of sense. But unless Americans come to believe that a draconian response to crime is not only wasteful but wrong, it’s hard to imagine that reformers’ efforts will survive an uptick in lawlessness.

If you want a preview of this nightmare scenario, you need only to look at the work Otis has been doing these past few years. As Mark Obbie, the author of the Slate piece, writes, Otis, a former Department of Justice employee and part-time teacher at Georgetown University’s law school, is “the go-to voice for maintaining tough-on-crime sentencing.” And even though most elites on both the left and the right disagree with him, Otis has been quite influential. Why? Not only because he seems to have the ear of Senate Judiciary Committee Chairman Chuck Grassley, but because “the man on the street,” as Otis puts it, still believes crime is increasing and shares Otis’s aversion to depicting the incarcerated as victims.

For those who subscribe to the pro-reform consensus, a group Otis says is comprised of “cozy interest groups and academic leftists,” the anti-reform arguments sound vulgar and callous. When he says that more prison means less crime, they point to the many studies showing the claim to be unsubstantiated at best. But when Otis responds that these studies are just liberal propaganda, and that “common sense” suggests that mass incarceration leads to lower levels of crime, his anti-intellectualism gets at an important truth, too. Its nature may be political rather than empirical; but in a democracy, it’s politics, not reason, that counts.

Another favored rhetorical trope of Otis’s is to describe the incarcerated with the kind of lurid, dehumanizing language that would offend most elites. In his world, every criminal is a “thug” who “belts you to grab your purse” or “rapes your eight year-old” or “assault[s] your college-age daughter on a meth-fueled high.” If you’ve grown up in a nice, safe neighborhood and you’ve read-up on all the latest research, Otis sounds like a better-educated Archie Bunker. If you’ve experienced crime first-hand and aren’t much in the habit of talking about “studies” whatsoever, though, your response to Otis may be different. Few of us would be willing to put ourselves in danger just for the sake of not seeming gauche.

Above all else, what Otis’s one-man counterrevolution highlights is the power of emotion, which has always had the capacity to overwhelm rational thought. And while the criminal justice reform movement’s hesitancy to make emotional arguments is understandable, the fact that no major reform legislation has come out of Washington, despite this supposed bipartisan consensus, shows that reason has its limits. If those who want to end the era of mass incarceration are to succeed, they’ll need to convince more voters that crime is not always spurred by a lack of character, and that not everyone who breaks the law is “bad.”

Ultimately, the reform movement will have to touch on people’s emotions, too. But instead of Otis’s reliance on fear, disgust and anger, reformers will need to inspire feelings of empathy, forgiveness, and understanding. They’ll need to create a culture where a person like Otis would never speak of a “thug” menacing your “daughter,” because he knows that such demagoguery will earn him more opponents than friends. And not just among the well-to-do and educated, but among what’s left of the mainstream, too.

Elias Isquith

Elias Isquith is a former Salon staff writer.

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