The year 2020 could easily be summed up this way: Black Lives Matter! Blue Lives Matter! All Lives Matter! Wear a mask! 2021 started with an attack on the U.S. Capitol, heightened by a rise in populism propelled by, one could argue, support for the nation’s most populist president, Donald Trump. Police officers participating in the Capitol riot should give pause to reformers of the country’s criminal justice system as proof of much-needed institutional transformation. A change required to ensure that future officers do not waver from upholding their sworn oath of office. In his critique of James Forman Jr.’s book, Locking Up Our Own (1), David Sklansky (2) notes the main lesson from Forman’s book is, “…we should worry more about making criminal justice safe for democracy than about making democracy safe for criminal justice.” (3) The participation of sworn and retired police officers in the January 6th attack on the Capitol hammers home that very point.
Reforming the U.S. Criminal Justice System in the aftermath of the protests surrounding the unwarranted deaths of George Floyd and Breonna Taylor requires acknowledging the role populism has played and continues to play in framing the American system of democracy. A system that serves as the milieu in which the profession of policing aids its stakeholders.
The critical choice for the United States is whether the country will go forward under an umbrella of popular sovereignty, where “the people,” drive the actions of legislators in setting policy, or democratic pluralism, where people self-govern peacefully and equitably (Sklansky). The populism choice of “the people” and the elected officials who represent them will have responsibility for redefining the nation’s multi-faceted criminal justice system. Post-WWII democracy has been recognized as a society of democratic pluralism, where elected leaders beholden to special interests rule in such a way as to leave behind an alienated and disaffected electorate (4). One could posit that the January 2021 insurrection at the Capitol represented the result of a burning fulmination of politics as usual.
Populist demands over the past several decades have resulted in an American criminal justice system, especially so in the realm of policing, that has transitioned from a focus on police service to one of law enforcement. In the early 1990s, national policing policies were enacted from emotional responses to perceived threats resulting in “lock ‘em up and throw away the key” strategic and political policy. The height of such policymaking was the enactment of the Violent Crime Control and Law Enforcement Act of 1994. This Congressional act imposed mandatory minimum sentences, new classifications of criminal acts, and resulted in mass incarceration as the solution to the social ills of the day. Federal and state jails were filled to overcapacity and a for-profit penal industrial complex was a consequence of this misguided policy response.
Today’s moment in time provides criminal justice reformers with an opportunity to set a course forward that asks and answers the right questions before enacting policy with baked-in unintended consequences for the future of our nation. Tomorrow’s criminal justice system must take into account maintaining self-governance amongst a diverse culture while returning our policing agencies to the core value of “to protect and serve” rather than expecting the police to be robotic enforcers of law and bringers of order. Legislators must find a way to bring together the disparate tribes of “law and order” purists and “defunding the police” activists to shape a criminal justice system that allows, “diverse groups of people to govern themselves and settle their differences…”(Sklansky) within the framework of our democratic system.
At the end of the day, criminal justice reform in the United States must be supportive of policing professionals like Capitol Police Officer Eugene Goodman, who bravely faced the mob attacking the Capitol balanced against the Constitutionally protected rights of citizens to fully enjoy the benefits of citizenship as delineated for all within The Constitution of the United States and other laws and policies of the country.
Author: Dana Gillis
References:
(1) James Forman, Jr., Locking Up Our Own: Crime and Punishment In Black America (2017)
(2) David Alan Sklansky, Stanley Morrison Professor of Law, Stanford University. Remarks delivered at the 2018 Jorde Symposium at UC Berkeley School of Law.
(3) Sklansky, David Alan. “Populism, Pluralism, and Criminal Justice.” California Law Review, 18 Feb. 2021, 1722, www-cdn.law.stanford.edu/wp-content/uploads/2020/01/Populism-Pluralism-and-Criminal Justice.pdf.
(4) Peter Bachrach, The Theory of Democratic Elitism: A Critique (1967); Darryl Baskin, American Pluralism: Theory, Practice, and Ideology, 31 J.POL. 71, 80 (1970)