Commentary: Criminal Justice Reform Is Not Dead Yet

By Rory Fleming

On November 30, prominent Substack journalist and podcaster Adam Johnson made a number of provocative claims about criminal justice reform: that it is “politically dead,” that the progressive prosecutor movement is “effectively over,” and that it is “time to move on.”

For anyone who has spent the last several years attempting to fight mass incarceration, these phrases will feel like blows. There is simultaneously a good bit of truth there. “Defund the police,” an radical activist slogan that only some meant literally, punished Democrats at the ballot box. The urgency of the post-George Floyd moment has passed, and how to address rising violent crime rates is the item of the hour.

Johnson is also largely right about the jurisdictions he names. San Francisco District Attorney Chesa Boudin, who quickly became a symbol of a national movement, is getting pummelled by local media and social media pundits. Legal journalist Emily Bazelon, whose best-selling book Charged is essentially an endorsement of that same movement, pulled back her support in an article last month, painting progressive Los Angeles District Attorney George Gascón as arrogant, even petulant, for trying to fulfill campaign promises.

In the 2021 mayoral race, New York City residents elected tough-on-crime Democratic Eric Adams, a former police  officer. Ali Watkins, a New York Times reporter thrown onto the crime beat because she slept with a source as a DC reporter and got reassigned, parroted out a factually false claim that the NYPD was solving 90 percent of murders pre-pandemic. Her editors cared not; the alarm bells were sounded by the usual suspects like celebrity public defender Scott Hechinger.

Undeniably, places like New York, Los Angeles, and San Francisco are no longer buzzing for substantive reform. But to some extent, they never have been. Elsewhere in the country, in places that one might never expect, progress has been quietly chugging along.

For example, in Tucson, Arizona, Pima County Attorney Laura Conover introduced major bail reform and immigrant-shielding policies on day one. Her predecessor, Barbara LaWall, was one of the largest proponents of mass incarceration under the Democratic Party flag. There have been some controversies, or at least disgruntled former staff trying to fabricate some, but they aren’t picked up in a national litmus test. Their local media market is too small.

To be frank, the current failures of the criminal justice reform movement have to do with strategy. It has long been recognized that it is easier to lead a revolution than to govern, but many progressive prosecutors have struggled with the transition. Acting more like nonprofits seeking to impress donors with big claims than savvy politicians, they naively latched onto maximally polarizing policy announcements. That isn’t smart politics.

For an elected prosecutor, keeping one’s head down and doing the work seems to be smarter, unless one only cares about getting attention for a run for higher office.

In addition, the socialist left, a prime driver of the progressive prosecutor movement, has continued to lack a compelling and realistic narrative for why mass incarceration is wrong. The idea that pumping social services into marginalized, high-crime communities will miraculously solve the problem of crime is simply not true. Similar to how foreign aid often fails, a significant redistribution of tax dollars to social services can easily lead to money going to corrupt or incompetent nonprofits that are more interested in charitable appearances than actually helping people. And setting that aside, rich young people commit crime too. They just aren’t thrown into the system for it, at least not as often.

We need new ideas for the movement’s dark night of the soul.

A few organizations seem to have some. The Square One Project recently developed a sort of Hippocratic Oath for justice system practitioners. First, the practitioner should ask whether the limitation on liberty serves a “legitimate social purpose.” Secondly, if so, the practitioner should ask if the specific liberty deprivation “reasonably necessary” to achieve that purpose.

These questions are rarely asked by justice system actors at any stage, but could be revolutionary as bedrock. It’s also possible to codify these non-radical-sounding principles into the law, an avenue the progressive prosecutor movement has ignored to its detriment.

Saying the criminal justice reform movement is dead because of recent losses is like saying water is dead because of a local drought. It is not time to “move on”; it’s time to fight better.

Rory is a writer and licensed attorney.