Here’s One Thing Republicans and Democrats Agree on: Criminal Justice Reform

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In Collin County, Texas, a suburban area northeast of Dallas where Democrats hoped for a blue wave on Election Day, State Representative Jeff Leach attacked his Democratic challenger as an “extreme anti-police zealot.”

But Mr. Leach also ran an ad featuring a man who spent 13 years in prison on a wrongful conviction, and who praised the candidate’s record on criminal justice reform. “I’m a Democrat; Jeff Leach is a Republican,” said the man, Christopher Scott. “He’s a person we cannot lose in our state.”

The ad was telling: In an election season in which no one seemed to agree on anything, and Republicans up and down the ballot sought to link Democrats to lawlessness, criminal justice reform was the rare issue upon which the two parties seemed to find some common ground.

Mr. Leach, who kept his seat, was one of a number of candidates who used the issue to appeal to the political center and prove that they could work across the aisle.

In Oklahoma City, a Republican state senator and congressional challenger, Stephanie Bice, spoke of giving low-level offenders “a second chance.” In Charleston, S.C., Nancy Mace, another Republican vying for a House seat, touted a state law she sponsored that barred the shackling of pregnant women during labor. Both women defeated Democratic incumbents in highly competitive districts.

Credit…Michael Ciaglo/Getty Images

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.

Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement.

Activists who have been pushing to rein in the excesses of a highly punitive system hope the resulting glow will help advance their agenda, which includes such measures as banning no-knock warrants, making police disciplinary records public and rethinking lengthy sentences for juveniles.

They also hope that voters will distinguish between calls to “defund the police,” which Republicans used to vigorously attack Democrats, and bipartisan efforts to improve accountability and fairness. Mr. Trump kept the two issues separate, attacking Democrats relentlessly for what he said was their failure to support law enforcement, while running a Super Bowl ad about a woman to whom he gave clemency.

“I actually think the winning argument was you can be for law and order, and you can be for second chances,” said Holly Harris, the executive director of the Justice Action Network, a nonpartisan advocacy group. “You can be supportive of the police and also think the punishment should fit the crime.”

This nuance does not always play with voters. In Georgia, Senator Kelly Loeffler, a Republican, trashed her Republican opponent, Representative Doug Collins, for his support of criminal justice reform, edging him out to face the Democratic challenger, Raphael Warnock, in a runoff.

But outside of bitter political contests, criminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills. Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s. President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.

But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal.

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll. And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

Credit…Kevin Lamarque/Reuters

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock.

Ms. Mace, a state representative in South Carolina, said the federal First Step Act provided a template for her: it prohibited shackling pregnant women but South Carolina law did not. “I was horrified when I realized that was the practice,” she said. “I’m a single mom, I have two kids.”

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars.

In a phone interview, Mr. Leach, who is co-chairman of the criminal justice caucus in the Texas House and the chairman of its Judiciary Committee, said reform resonates with voters across the spectrum, and not only because it saves money.

“I think Texans are in love with this issue because we love our freedom and liberty and when people can be free — when they’ve proven that they can be free and be productive citizens — we want to support that and empower them,” he said.

Credit…Eric Gay/Associated Press

He added that he is a “pro-life conservative” with deep concerns about wrongful convictions and the broad application of capital punishment: “It should keep us up at night and it definitely does keep me up at night. We know that there are men on death row right now who did not kill anybody. And I’m a strong supporter of the death penalty.”

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

Both Mr. Scott, the exoneree in Mr. Leach’s ad, and Ms. Johnson, who was in Mr. Trump’s Super Bowl ad, are Black, whereas the candidates are white.

Mr. Blizzard said that the “defund the police” slogan proved to be very unpopular with voters. “Honestly, Republicans would have come up with ‘defund the police’” if protesters had not, he said.

As a result, countless Democratic candidates — including one former police officer — complained of having been unfairly smeared with a message they did not support. The resulting toxicity could easily bleed over into areas where there is broad agreement for change.

Already, Democrats and Republicans have accused each other of bad faith over a policing bill put forth by Senator Tim Scott, a South Carolina Republican who has spoken of being harassed by law enforcement because he is Black. Democrats said the bill did not go nearly far enough, while Republicans accused Democrats of grandstanding.

Credit…Erin Schaff/The New York Times

And some critics say that even states that are known for reform, like Texas, have merely gone from being extremely harsh to less so, and that many of the issues for which it is easier to generate outrage, like shackling women while they give birth, have already been banned. The hard part for reform advocates going forward will be calibrating their ambition.

“You’ve already probably done a lot of the easier stuff,” said Dan Bayens, co-founder of Content Creative Media, a Republican advertising firm. “The next part is not going to be as easy to do.”

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