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Commentary

Radley, DeRay, and Piper on Obama’s Conversation with The Marshall Project

Other voices from the criminal justice community weigh in.

The White House forum on criminal justice Thursday, moderated by The Marshall Project’s editor-in-chief, Bill Keller, featured one federal prosecutor, one big-city police chief, and, of course, the nation’s chief executive. Because the conversation about justice reforms involves many perspectives, we asked four other notable voices within the criminal justice community to provide us with some context on what they saw and heard.

Radley Balko, author of “The Rise of the Warrior Cop”

First, let’s acknowledge some progress. For as long as I’ve been politically aware, the only acceptable thing a president could say about crime is that we weren’t doing enough to fight it. That we now have a president, a Congress, and a trans-ideological coalition calling for reform, not longer sentences, is a breakthrough.

To be fair, there isn’t a whole lot President Obama could say at an event like this that wouldn’t come off as symbolic rhetoric and vague platitudes. That said, most of the event was… symbolic rhetoric and vague platitudes.

This panel consisted of the chief law enforcement officer in America, a big city police chief, and a federal prosecutor, discussing reform in front of a room full of police chiefs and prosecutors. Not only were they all government employees, they were all law enforcement. When the architects of that system, from Newt Gingrich, to Ed Meese, to Bill Clinton, and some of the worse offenders inside of it, like Anita Alvarez, now count themselves among the “reformers,” there’s a real danger that the word itself has lost all meaning. It's like convening a panel of dogs to discuss the threats to squirrels.

A serious discussion of criminal justice reform that includes parties with actual skin in the game ought to produce robust disagreement, even some conflict. Here, unsurprisingly, the panelists were going out of their way to agree with another, and found very little to debate. Tellingly, so much of the conversation was about what government needs to do: More cops. More spending, couched in vague terms like “investing in our future.” More federal-local cooperation.

Left out of the discussion was what government should stop doing. There was no mention of the misplaced incentives that infect every crevice of criminal justice. Nothing about local governments who prey on the poor with petty fines and harassment. There was much talk about drug treatment, drug diversion, and violent crime, but no mention of all the violence and devastation wrought by drug prohibition itself.

Obama was right when he said that we ask too much of the police, and often put them in an impossible position. But it isn’t the members of the communities the police serve who are to blame. It’s the politicians who create bad policies, then ask the police to enforce them. That’s why I’d love to have seen one of the panel slots filled by someone who fights on the other side of what Obama calls “the front lines.” Perhaps an attorney from a group like ArchCity Defenders. Or a public defender. Or a social worker who helps indigent people try to navigate the system. All due credit to the Marshall Project for putting this event together. But the panel desperately needed a voice to represent the people all these reform ideas are supposedly going to help, someone who’s seen the bowels of the operation, who can point out which of these ideas are worthy, which are useless, and which may do more harm than good.

The most productive part of the panel came when President Obama was discussing the policing changes in Camden, New Jersey. Here we heard discussion of concrete policies that prioritized the well-being of the community, not just brute force. This was substantive reform, and it produced positive results. Obama’s talk about data collection was also important, although it seems to conflict with some recent statements from his attorney general.

Mostly, though, this panel was a president and two long-time players in the system praising themselves for having finally come around. So much of the talk today was guarded. It was about gradualism and caution. I suspect that’s because real reform would take a lot of power away from the very sorts of people on today’s panel. So of course they’d like to see it happen slowly.

But the laws that got us the system we have today weren’t gradual, cautious, or guarded. They were passed rashly and thoughtlessly. The communities affected by them are still suffering. The window for reform may last for years, or it may be fleeting. But we can’t risk squandering this opportunity handing it over to the people who have the most to lose and the least to gain from real change.

Certainly, the now-repentant politicians who helped pass the laws that got us here and the law enforcement officials who lead in today’s broken system should be part of the reform conversation. But they shouldn’t get to lead it.

Commentary

Original analysis and perspectives from across the spectrum on criminal justice

DeRay McKesson, a Black Lives Matter activist

It will be interesting to see if this new coalition of law enforcement leaders focused on ending mass incarceration produces a focused set of recommendations that directly address the problems, or if it will be another coalition that is optically appealing but substantively weak. It is easy to focus solely on the legal system when thinking about how to end mass incarceration while ignoring the role and power of local police departments in willfully engaging in behaviors that encourage a cycle of mass incarceration. That made President Obama’s comment about needing to change the fabric of policing all the more important.

President Obama’s unprompted defense of BlackLivesMatter was powerful given the context — he defended the movement to an audience consisting primarily of law enforcement leaders. I am hopeful, too, that President Obama’s language shifts away from suggesting that communities need to do more to end the cycle of mass incarceration and instead shifts to empowering communities to hold systems and structures accountable.

Piper Kerman, author of “Orange is the New Black”

I’m delighted that the president is using the power of the Oval Office to prioritize criminal justice reform, and I hope he’ll use his executive power to implement more federal reform — for example applying “ban the box” policies to the federal workforce. I was also glad to hear Bill Keller ask the question: why should we trust the people who helped create mass incarceration — police, prosecutors, and other people within the law enforcement hierarchy — to dismantle a status quo that benefits them in the form of power?

One thing that went unmentioned by the panel was public defense reform, which is essential to reducing jail and prison populations and achieving a fair justice system. Realistically, the system is too vast and powerful to be reformed without the many thousands of people who work within it wanting change — it’s not just changing statutes but also hearts and minds, and I think that’s happening. But we have to see law enforcement held to stronger accountability measures, most of all to the communities decimated by mass incarceration, which are disproportionately communities of color.

Susan Storey, the chief public defender for Connecticut’s statewide defender system.

President Obama urges us all to be partners with law enforcement and “be part of the team” to address racial bias. This is a difficult task in state- and county-based criminal justice systems, where poor people of color are disproportionately arrested, face criminal charges, and are held on bond often without adequate assistance of counsel. American justice is based on the belief that criminal defendants should have honored their 6th Amendment Constitutional right to have competent counsel. But the promise of Gideon v. Wainwright has gone largely unfulfilled for more than 50 years, and virtually every indigent defense organization in the country remains severely underfunded.

The undeniable fact remains that instances of police and prosecutorial misconduct are rampant and go unchecked by any meaningful sanctions. These actions often result in the wrongful conviction of innocent people who spend decades in prison for crimes they did not commit. In the president’s words, “Are we willing to tolerate this?”

Responses have been edited for length and clarity.