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Commentary

The Petri Dish

Georgia has become the laboratory of criminal justice reform.

Everyone seems to agree that criminal justice reform is politically possible these days, in state legislatures around the nation as well as Capitol Hill, because of an emerging bipartisan political and legal consensus that the status quo is unsustainable. But this consensus is not universal. Progressives and conservatives don’t always agree on what criminal justice reforms should look like and which should be tackled first. And there are still several flashpoints where the two sides seem as intractably apart as ever.

Take sentencing reform, for example. There is significant bipartisan support in the Senate for new laws that would reduce the federal prison population by easing the impact of federal mandatory minimum sentences. But Sen. Charles Grassley (R-Iowa), as chairman of the Senate Judiciary Committee, is poised to block those efforts, which he feels are an unwelcome result of what he calls the “leniency industrial complex.” With the Senate’s arcane procedural rules, a “consensus” often isn’t enough to get legislation passed.

The record of former Texas governor Rick Perry also helps illustrate the continuing ideological divide. When he joined the “Right on Crime” cause earlier this month, conservatives and moderates promptly noted his record of reducing incarceration and saving taxpayers half a billion dollars as crime rates declined. Just as quickly, some progressives criticized his positions in favor of the death penalty and prison privatization (and gave the credit for Texas’ reforms to other state politicians).

Nowhere are the promise of criminal justice reform and the pitfalls of partisanship more prominently on display than in Georgia, a state now in the middle of several important public debates about the future of criminal justice. On some issues on the reformist agenda, Georgia has been a leader. On others, it has lagged. The dichotomy is particularly striking when considering just how many timely criminal-justice issues policymakers in Georgia are confronting. On criminal justice issues, the state is a “Petri dish,” as an advocate put it to me earlier this week.

For example, Georgia, a deeply red state, moved as early as 2012 to implement the type of sweeping sentencing reform, including the diversion of non-violent drug offenders to rehabilitation programs, that lawmakers in other states are only now beginning to debate. Last month, Gov. Nathan Deal, the state’s Republican governor, signed an executive order implementing a “ban the box” policy, protecting people with criminal records from having to disclose that information on an application for a government job. Last year, Deal signed into law a measure that strengthens prisoner reentry programs in the state.

But on another current bellwether issue in criminal justice — capital punishment — Georgia remains one of the most aggressive and active death penalty states. Earlier this month, it sought to execute a female prisoner for the first time since World War II; her execution was stayed at the last minute. And the state recently enacted one of the most onerous lethal injection secrecy laws in the nation to protect the identities of compounding pharmacies that make the drugs used to kill the condemned. The Georgia Board of Pardons and Paroles declined to sign an order sparing the life of Warren Lee Hill, who was executed by prison officials in January even though there was strong evidence that he was profoundly mentally disabled and thus should have been spared under recent U.S. Supreme Court precedent.

On some notable criminal justice flashpoints, Georgia hasn’t quite made up its mind. State lawmakers earlier this year contemplated a bill that would have dramatically weakened the state’s indigent defense system by eliminating a provision that requires the timely appointment of counsel; they backed off when the state’s public defense community expressed alarm. The truth is, indigent Georgia defendants, especially the youngest, often don’t get timely or competent representation.

The Justice Department last week took the unusual step of filing a “Statement of Position” in a pending lawsuit against four Georgia counties where the lack of counsel is particularly egregious. Georgia evidently thought it might have fixed this problem in 2013 when it enacted broad juvenile-justice reform, and the state does spend significantly more on public defense than it has in the past. But it still trails many other states. on what is, in criminal cases, a well established constitutional right.

Like its neighbor, Alabama, Georgia has in recent years outsourced some of its traditional justice system functions — like probation — to private companies. Unlike Alabama, however, Georgia is now moving to rein in those practices after it became clear they were creating de facto “debtors’ prisons” inhabited by low-income citizens unable to pay exorbitant fines. Last year, Deal vetoed a bill that would have expanded the powers of private probation companies. And this year, some of the state lawmakers who sent him that bill have changed direction and are moving to curtail probation abuses.

One could teach an entire course on the current state of criminal justice just by focusing on Georgia. What’s happened there — what’s happening there — gives progressives hope that meaningful reform is possible and conservatives reassurance that the reforms, if they are to come, won’t be rushed or too far-reaching. And that may be a winning political and ideological formula that spreads from Georgia to other jurisdictions and bridges the divide that still exists within the “consensus” for reform.

A previous version of this story inaccurately identified those who declined to sign an order saving the life of Warren Lee Hill.