To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.
These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.
They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”
The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress.
Michael Waldman, president of the Brennan Center, and Adureh Onyekwere, a senior research and program associate there, along with Inimai Chettiar and Priya Raghavan, described the goals of the movement in a May 2019 essay, “Ending Mass Incarceration: Ideas from Today’s Leaders”:
Mass incarceration is the civil rights crisis of our time. The racial disparities pervasive in our justice system compound at every juncture: African Americans are more likely to be stopped by police, arrested, detained before trial, and given harsher sentences than whites.
How do we achieve change, the authors ask? The solutions they envisage range broadly
From eliminating prison for lower-level crimes to incentivizing states to decarcerate, from ending bail to abolishing private prisons, from reforming housing and employment laws to changing the public perception of the justice system and cultivating respect for all lives.
At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.
The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.
Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public.
Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.
Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.”
Once a strong supporter of the death penalty, Biden now calls for its elimination, noting on his website:
Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level.
While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016.
Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote:
The supposed “rights” of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights.
Put another way, Tribe continued,
my “right” not to be upset by your appearance or life choices cannot occupy the same plane as your right to live your life as you opt to, or are compelled to, live it if we are to have a viable social and legal system. One needn’t be a libertarian to recognize that there is a difference in kind between someone’s genuine right to be free of another’s physical intrusion or displacement and someone’s ersatz right to be free of another’s merely offending or upsetting behavior or circumstances.
In this view, according to Tribe, “rights of the first, or primary, sort can be universally recognized; rights of the second sort must be subordinated if social life is to be tolerable.”
Trump, for his part, clearly rejects Tribe’s distinction between first versus second order, or genuine versus ersatz, rights. For Trump, the people who come into contact with the homeless have first order rights. In a July 1, 2019, interview with Fox’s Tucker Carlson, Trump declared:
You can’t have what’s happening — where police officers are getting sick just by walking the beat. I mean, they’re getting actually very sick, where people are getting sick, where the people living there living in hell, too.
Trump went on:
We cannot ruin our cities. And you have people that work in those cities. They work in office buildings and to get into the building, they have to walk through a scene that nobody would have believed possible three years ago. And this is the liberal establishment. This is what I’m fighting.
Republicans are responding to the initiatives of progressive prosecutors with a vengeance.
In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”
This threat, Barr continued, comes from
the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.
These prosecutors, Barr declared,
have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.
Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner. Krasner was elected in 2017 on a platform promising to
End mass incarceration; Stop prosecuting insufficient and insignificant cases; Review past convictions, free the wrongfully convicted; Stop cash bail imprisonment; Treat addiction as a medical problem, not a crime.
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