In a major speech delivered last week in the wake of unrest in Baltimore, Hillary Clinton made a stirring and unequivocal case for reforming the criminal justice system. “There is something profoundly wrong when African American men are still far more likely to be stopped and searched by police, charged with crimes, and sentenced to longer prison terms than are meted out to their white counterparts,” Clinton said. “There is something wrong when a third of all black men face the prospect of prison during their lifetimes.”
The speech was hailed as significant for a number of reasons. For one thing, it confirmed that, 21 years after her husband signed a bill making the criminal justice system much more punitive, Clinton has definitively come to the conclusion that the nation’s out-of-control incarceration rate is a problem that needs fixing. The speech underscored that justice reform will enjoy full-throated support on both sides of the aisle during the 2016 election, which has attracted multiple candidates on the Republican side who strongly believe America’s courts are sending too many people to prison for too long.
But Clinton’s speech was important for another reason, too, one that hasn’t been widely acknowledged thus far. In pegging her remarks about mass incarceration to the killing of Freddie Gray in Baltimore, and making a point of calling for both prison and police reform in the same breath, Clinton was making a nontrivial connection between unfair law enforcement practices and unfair prison policy. And while that connection may seem self-evident to some, the fact is that politicians often treat them as separate issues, and many influential figures on the right who have come out as criminal justice reformers—including Newt Gingrich, Jeb Bush, Rick Perry, and the mega-donors Charles and David Koch—have not been willing to make the link.
Clinton, on the other hand, made the connection deliberately and clearly: Over the course of her roughly 3,500-word speech, she put forth a wide-ranging argument suggesting that the solution to America’s criminal justice crisis will not just be a matter of rolling back overly harsh sentencing guidelines or creating treatment programs for nonviolent drug offenders—measures that enjoy relatively broad support on the right—but addressing the broken trust between black communities and the police departments that are supposed to protect them. “Today smart policing in communities that builds relationships, partnerships, and trust makes more sense than ever,” Clinton said. “And it shouldn’t be limited just to officers on the beat. It’s an ethic that should extend throughout our criminal justice system. To prosecutors and parole officers. To judges and lawmakers.”
Again, it might seem obvious to some that politicians interested in justice reform should be treating the police-involved killings of Michael Brown, Walter Scott, Tamir Rice, and Freddie Gray as being intimately related to the policies resulting in mass imprisonment of black Americans. But when you look at the bipartisan coalition for justice reform that has formed over the past several years, you’ll notice this connection doesn’t really get made except in the context of civil forfeiture, the controversial practice of police departments seizing money and property from people who have not been charged with crimes.
“The left and right have banded together to deal with mass incarceration … but you don’t see the same degree of robust joining together on policing,” said Nicholas Turner, the president of the Vera Institute of Justice, a nonprofit that works for reform, in an interview. Turner added, “Hillary connecting this policing issue with mass incarceration is spot-on.”
Van Jones, the liberal activist who helped organize the recent Bipartisan Summit on Criminal Justice Reform alongside Gingrich, the American Civil Liberties Union, and Koch Industries, told me much the same thing—that for all the air time prison reform is currently enjoying in conservative circles, policing tends not to come up.
“The bipartisan space right now focuses on what happens after a person gets arrested, not why the person got arrested,” Jones said. “So it’s: Are the sentences too long? Are the conditions of confinement conducive to rehabilitation? When someone comes home and re-enters society, can they get a fair shot? But there’s not a lot of bipartisan discussion at this stage about doing something about why people are being arrested, or the way they’re being arrested. There’s a big bipartisan sinkhole that’s growing and pulling everything into it, but policing has not yet fallen into it.”
To get a conservative take on the move Clinton made in her speech, I called former New York City Police Commissioner Bernard Kerik, who served three years in federal prison for tax fraud and making false statements before being released and remaking himself as a criminal justice reformer. “I think it’s two different issues,” Kerik told me. “I don’t think the police is a part of the criminal justice problem as much as … the courts and the laws. That’s a much bigger problem than the police. Mandatory minimums, our sentencing guidelines—that’s the problem.”
Kerik, who has compared prison to “dying with your eyes open,” added: “The cops go to a community to enforce the laws that have been written. That’s why they’re there. If it’s a minority community and there’s high crime, they’re going there because there’s high crime. They’re going to enforce the laws on the books. … When you talk about the racial disparities in incarceration, a lot of that doesn’t have to do with the police, it has to do with the laws themselves.”
Kerik’s views on this are largely representative of how the right thinks about law enforcement. Though it has become increasingly acceptable among Republicans to support making prison terms for nonviolent offenders shorter, the party’s long-standing dedication to “law and order” seems to be holding strong when it comes to policing.
Mark Holden, the general counsel for Koch Industries who has emerged as the face of Charles and David Koch’s efforts on criminal justice reform, indicated in an emailed statement that while he acknowledges the distrust between law enforcement agencies and the communities they police, repairing that distrust is a matter of making changes to the way we prosecute people who break the law, not necessarily changing police practices.
“I think the whole CJ system is interconnected,” Holden wrote, noting that his remarks should not be seen as a response to the Clinton speech. “[We should] reform the CJ system so police can enhance public safety by going after violent criminals, instead of having them deal with all the issues we don’t want to deal with like mentally ill people, drug addicts, homeless, low level drug offenders. Our brave law enforcement officers signed up to protect and serve these communities but instead we have set up a system that puts them in perpetual conflict with the communities they serve. It isn’t right and it isn’t working. Our law enforcement and our communities deserve better.”
It will be interesting to see how the discourse surrounding criminal justice reform in the 2016 campaign will be affected by Hillary Clinton’s apparent belief that it doesn’t make sense to talk about prison reform without also talking about police reform. If she holds this line, it could create a point of contention between her and her Republican rivals, and serve as a revealing window onto the differences between how conservatives and liberals think about how criminal justice in the United States needs to change.
Is there a chance that, as influential conservative Pat Nolan told me after the release of the Department of Justice report on Ferguson, Missouri, reformers on the right will extend their critique to law enforcement, and stop treating prison and policing reform as two separate things? Joseph Margulies, a visiting professor of law and government at Cornell and the author of a forthcoming book about criminal justice reform in the 21st century, told me he thinks it’s unlikely.
“Among social conservatives, policing is still perceived as the thin blue line between order and chaos,” Margulies said. “To the extent that social conservatives are still attached to the idea of order, it’s very difficult to challenge the police, particularly if you believe that there is a lawlessness out there that needs to be restrained and controlled. That’s just always been an element of social conservatism. And while it’s under some strain now because it’s in tension with other [conservative issues] like overreliance on government … those are easier to apply in the prison context than in the police context.”
Clinton’s speech has been criticized by some on the left for ignoring the role her husband played in bringing about the problems she now says she wants to solve. But even if you think that’s a legitimate complaint, the fact that Clinton is unapologetically expanding the scope of what criminal justice reform should be deserves to be seen as a significant development.