When television viewers in the United States tuned into the Super Bowl in early February, they were greeted by a commercial from President Donald Trump’s re-election campaign featuring the remarkable story of Alice Marie Johnson.
Read this story in a minute.
Johnson is an African American woman who was convicted on a nonviolent drug charge in 1996 and given a life sentence. In the minds of many Americans, Johnson’s excessive sentence is emblematic of the country’s punitive drug laws and system of mass incarceration. But in 2018, the Republican leader – reportedly helped along by Kim Kardashian West – commuted Johnson’s sentence, ending 21 years behind bars.
"While this administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance," said the White House in a statement at the time.
The Super Bowl commercial noted both Johnson’s commuted sentence and the fact that Trump has embraced wider criminal justice reforms. In 2018, he championed and passed the First Step Act, a major reform bill that released thousands of Americans from prison earlier than expected.
Trump’s position on criminal justice reform marks a major reversal in American politics, particularly in the Republican party, which has always portrayed itself as being "tough on crime". Consider for contrast this commercial used by a Republican only three decades prior. In 1988, George HW Bush featured another African American prisoner, Willie Horton, in an advert attacking his Democratic rival, the then Massachusetts governor Michael Dukakis.
Bush’s ad noted that the state of Massachusetts – under a furlough programme approved of by Dukakis – allowed Horton, a convicted murderer, to leave prison for a weekend. During that weekend, he raped a woman and stabbed her partner.
The racially charged advertisement – featuring a black man who was offered leniency under a system maintained by a white liberal – proved politically devastating for Dukakis. The presidential candidate’s campaign manager, Susan Estrich, later said that the goal of the ad must have been to "make Willie Horton into Dukakis’s running mate".
In the 30 years since, much in politics has shifted. Over the past decade specifically, lawmakers and activists in both the major parties in the US have worked to reform the nation’s criminal justice system – emphasising the human as well as the financial cost of mass incarceration. This growing area of agreement has changed American politics so much that even the conventionally right wing GOP now sees more value in talking about freeing incarcerated people than keeping them behind bars, or adding to their number.
One of the places where this transformation has been most apparent is in the American south. The southern states have long been at the heart of tough-on-crime policies that prioritised punitive measures over rehabilitation – an ugly legacy of historical racism.
A punitive system with roots in slavery
The defeat of the Confederate States and the ratification of the 13th Amendment into the US constitution in 1865 made official the abolition of slavery but allowed forced labour for incarcerated people. In that same year, many southern states passed laws and maintained institutions that were intended to keep black people from full emancipation.
"Once slavery ended, the white power structure needed to find ways to continue to maintain power and control … especially [over] black people," Sara Totonchi, executive director of the Southern Center for Human Rights in Georgia, tells me. "They created laws that … basically allowed people to be arrested just for being black."
Southern states continued to prosper on the back of captive black labour even after the official end of slavery
Totonchi points to the "black codes" – laws that were introduced at the state level to restrict the freedom of African Americans. In South Carolina, one of the first states to enact such codes, black people who did work other than as farmers and servants were subject to additional taxes; many were also arrested under harsh vagrancy laws.
Much of the south also maintained a system of convict leasing, by which prisoners were made to work for businesses and wealthy families. These systems of continued oppression allowed southern states to prosper on the back of captive black labour even after the official end of slavery. One estimate suggests that by 1898, the state of Alabama derived 73% of its revenues from convict labour. Poor whites were also impacted, though African Americans were – even then – overrepresented in the convict population.
Convict leasing finally ended in the early 20th century, with Florida first outlawing the practice in 1923 after a young white man named Martin Talbert was arrested for vagrancy, sentenced to county jail, leased out and forced to shovel mud for 15 hours a day. He was badly beaten and died in custody. His parents were told the 22-year-old died of fever. Journalists covered Talbert’s story, and the public outcry forced Florida to stop the practice. Alabama became the last state to end convict leasing in 1928, more than 60 years after the end of slavery.
Racial discrimination in the criminal justice system continued throughout the brutal Jim Crow era, and although explicitly discriminatory laws were repealed as a result of the civil rights movement, America’s system of punitive justice remained harsh and unforgiving.
Criminal justice reform: too politically toxic for conservatives?
Today, the US has the highest incarceration rate of any country in the world; four of the top five states with the highest prison population are in the US south. But just as some of the harshest criminal justice policies emerged from the south, so too has a bipartisan consensus for reform.
In 2011, a Republican congressman named Nathan Deal was elected governor of the state of Georgia. Deal worked with the legislature to establish the Special Council on Criminal Justice Reform, intended to review how the southern state could bring down its rate of incarceration. As of 2007, one in 70 adults was behind bars in Georgia, compared to the national average of one in 100 adults. Georgia had the fourth highest incarceration rate in the country.
Deal and the legislature’s goal was to start bringing that number down by examining ways to keep people out of prison for minor and nonviolent crimes. "That’s not a Republican issue," he would often hear voters say. To which he’d reply: "No, it might not be. But it ought to be. And it’s the right thing to do."
With overwhelming bipartisan backing in the Georgia state legislature, Deal pushed for reforms that included the expansion of drug courts that provide support, not prison, to low-level drug offenders and increasing the threshold for felony theft from $500 to $1,500, ensuring that forms of justice other than incarceration were possible for such low-level offences.
For those who fret that reform will lead to an increase in crime, there is no evidence to support this claim
Over Deal’s two terms as governor, prison admissions dropped by almost 19%, while the incarceration of black men dropped by almost 30%; the numbers of African Americans in Georgia’s prisons dropped to record lows.
Many other states have seen similar declines in their incarceration rates and overall prison populations. In 2018, the number of prisoners behind bars nationwide hit a nine-year low, thanks in part to reforms enacted by both blue (Democratic) and red (Republican) states.
"The consensus exists in large part because from 1994 to [about] 2014, crime went down every single year, and now it’s near 50-year lows," explains Andrew Fleischman, a Georgia-based attorney who has handled over 60 appeals and helped exonerate people who were wrongfully convicted. "People on average feel safer than they used to."
Indeed, in 1990 there were 2,262 murders in New York City. In 2017, there were just 290. It’s hardly a surprise that criminal justice reformers have won friends in both major parties at a time when crime in America is the lowest it has been in decades.
Despite often working with liberals on criminal justice matters, Fleischman describes himself as a libertarian who often votes for Republicans in his home state of Georgia. He points to the financial cost of mass incarceration as one reason conservatives are increasingly supportive of reforms. "Another part of it has been sort of fiscal conservatism," he says. "Prisons are extremely expensive."
It costs about $20,000 a year to keep a prisoner behind bars in Georgia. One estimate by the reform-friendly Equal Justice Institute puts the total cost of mass incarceration is $182bn annually.
The human and fiscal costs created a level of comity between Republicans and Democrats in a state where the two parties have a notoriously acrimonious relationship. Take Stacey Abrams, who, after narrowly losing her race for governor in 2018, accused the Republicans of voter suppression and refused to concede the election. Yet, despite the acrimony between Abrams and the GOP, she boasted of working together with then-governor Deal on criminal justice reform during the pre-election debates and on the campaign trail. " Nathan Deal has done more for criminal justice reform than any governor in my recent memory," Abrams said, despite rarely having a positive word for the Republican party.
Reflecting on Deal’s legacy, Fleischmann says: "It was really something he believed in, and lived, and it shifted Georgia substantially. Now, we’re still a super harsh state, in so many ways, but for the first time, stuff stopped getting so much worse, year after year, in the eight years he was in the governorship."
Counting costs helps build consensus
In nearby Alabama, another state that has historically had some of the most crowded prisons, a bipartisan alliance has succeeded in reducing the state’s prison population. In 2013, it embarked on sentencing reform that, as Georgia had done before it, reduced penalties for some nonviolent crimes and drug convictions while expanding the use of parole and supervision.
"The Alabama Department of Corrections has custody of approximately 4,000 inmates less than it did on 1 October 2013 … a drop of almost 15%," Bennett Wright, who leads the state’s sentencing commission, told me when he and I spoke in 2017.
Importantly, for those who fret that criminal justice reform – characterised by fewer custodian sentences – will lead to an increase in crime, Wright has found no evidence to support such a claim. "I have yet to see any information that shows that crime has increased in the state of Alabama. So I really think one of the first big benefits in the change of criminal justice policy is it has not endangered or decreased public safety."
Dillon Nettles, a policy analyst at the Alabama branch of non-profit organisation, the American Civil Liberties Union, tells me that the state still has work to do to bring down rates of incarceration (Alabama, after all, still has the most crowded prisons in the country), but he agrees that it has made progress in the past few years. Like Fleischmann, Nettles argues that conservatives have come to realise that maintaining such a vast prison system is financially burdensome.
‘The general incompetency of government didn’t make them the right people to decide life and death’ – Republican state senator John Reagan
"The fiscal aspects are fairly big, especially for conservatives, Republicans, and libertarians," he says. "Really across the spectrum, nobody – regardless of ideology or political affiliation – likes that large amounts of money, millions and millions of dollars, are being flushed into a criminal justice system that has a fairly low return in investment … you’re talking about a 30% recidivism rate."
Along with the consensus to downsize America’s prison population, politicians across party lines are also slowly turning their attention to the death penalty. Although Republicans are still much more supportive of capital punishment than Democrats, support for the practice has declined among all groups since the 1990s.
In 2019, New Hampshire became the latest state to end the death penalty, after Democrats and Republicans worked together to override Republican governor John H Sununu’s veto of repeal legislation. "The more and more experience I had with government, I concluded that the general incompetency of government didn’t make them the right people to decide life and death," Republican state senator John Reagan told the New York Times.
Reflecting on the progress made, Hannah Cox, the national manager at Conservatives Concerned About the Death Penalty, tells me: "If you were to look at the states around the year 2000, it was really rare to see a Republican sponsor a piece of legislation to repeal the death penalty. It was maybe once or twice … by 2016, that had increased 10-fold. Last year, we had 10 states that had Republican-sponsored bills to repeal the death penalty."
A US cautionary tale for the rest of the world
While the US is slowly moving away from tough-on-crime policies, many other parts of the world seem to be ramping up theirs.
In the Philippines, president Rodrigo Duterte is waging a brutal drug war that has taken thousands of lives. Ahead of elections in New Zealand this year, centre-right National Party shifted their already hardline policies "into a higher gear". Meanwhile, if Europe is anything like the US, xenophobia, Islamophobia and fear of immigrant populations might help explain increasingly loud tough-on-crime rhetoric.
"I think US carceral policies are a response to increasing diversity," Fleischman says. "It’s not a coincidence [US] criminal statutes got way tougher right after desegregation. You know, people getting more rights and being more visible to us and us being nervous about that … I think you’re seeing the same thing in Europe."
Lessons in restraint have come from an unlikely source: Ronald Reagan
The United Kingdom already has the highest prison population in Europe, and its prisons hold the most people on life and indeterminate sentences. Boris Johnson, the prime minister, campaigned on a platform that included opening new prisons, recruiting more police officers, dishing out longer sentences for criminal offences, and, notably, repealing one of the few progressive moves of his predecessor, Theresa May, who restricted police stop-and-search powers, which are known to disproportionately target black people.
Johnson may position himself as responding to the needs of the people (using rhetoric about making criminals afraid, not the public). But violent crime has not seen a significant spike in the United Kingdom, despite public concern about crime increasing 60% between October 2017 and October 2019.
In addition, even in the wake of terror attacks when politicians look to console the public and win support by announcing tougher sentencing, it is telling that Jack Crilly, the man who was able to subdue the London Bridge attacker in November 2019, has spoken out against longer prison sentences. Crilly is himself a former prisoner.
Make policy with humility
Criminal justice reformers interviewed for this article offered a word of advice for those looking to strengthen their political position through tough-on-crime policies: beware of knee-jerk reactions.
"Don’t legislate by anecdote," warns Lauren Krisai, senior policy analyst at the DC-based Justice Action Network. “In the United States, we had the infamous Willie Horton [story, but] that one example isn’t representative of the entire system. And so to take one bad example of somebody who committed a crime; to use that to pass … tougher laws on everybody, it hasn’t worked out in the US, and it won’t work out in other places either."
A lesson in restraint comes from an unlikely source: none other than Ronald Reagan, who in 1988 dealt with an incident similar to that of Willie Horton’s when he was governor of California. Reagan is reported as having "vigorously defended" the furlough programme, saying that California was "leading the nation in rehabilitation", and calling for the actions of one man to be seen in context. "More than 20,000 already have these passes and this was the only case of this kind, the only murder," Reagan said.
If nothing else, posturing should be tempered by humility because no one can say for sure what makes crime go up and down in society. "I think the lesson to learn from the US is that ultimately our crime rates went down year over year no matter whether we had harsher policies or not," says Fleischman. "We’re actually not sure why crime rates keep going down … we still haven’t figured out why this is going in the right direction."
Ultimately, wherever in the world politicians may look to the US as an example of tough-on-crime policies, they would do well to heed the words of Nathan Deal, who led his state towards reform: "There comes a point where incarceration no longer serves a purpose. There comes a point where retribution ought to stop and rehabilitation ought to take over."