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Politicians’ Tough-on-Crime Messaging Could Have Devastating Consequences

9 minute read
Ofer is a professor at Princeton University and the founding director of its Policy Advocacy Clinic. He is also the former Deputy National Political Director of the ACLU

In the majority of hotly contested 2022 midterm races across the country, tough-on-crime rhetoric is at the top of the agenda. Close to 60% of Republican spending on campaign ads since September has been on the topic of crime, with tens of thousands of ads running on the issue, and Democrats have responded with their own $36 million war chest. Not since the height of America’s mass incarceration era has the nation seen law and order politics play such an outsized role in candidate races up and down the ballot. The outcome could put the country in danger of entering a new era of more mass incarceration.

In Florida, Governor Ron DeSantis is attacking “leftist politicians and Soros-backed prosecutors” for “pro-crime ideology.” In Pennsylvania, Republicans are accusing John Fetterman of being soft on crime by supporting criminal justice reform. In Wisconsin, Republicans are going after Mandela Barnes for supporting bail reform and police reform, running ads that many have compared to the racist Willie Horton ad of 1988 and displaying pictures of Barnes alongside three Congress Members—Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib, all women of color—and calling him “different” and “dangerous.”

In response, many Democrats are touting their own tough-on-crime message. They’re slamming Republicans as the ones who are soft on crime and not “backing the blue,” as well as attacking parole reform, bail reform, and efforts to no longer prosecute drug possession. Joy Hofmeister, the Democratic challenger to Republican Oklahoma governor Kevin Stitt, even hammered the governor for supporting a clemency initiative in his state that was supported by advocates on the left and right. Meanwhile, President Joe Biden is reminding Americans that he has already allowed at least $10 billion in federal stimulus funds to be used to hire more police and police equipment.

While Republicans are leading this charge, both parties are playing with fire, as the political rhetoric being deployed this election season has the potential to trigger a new surge in incarceration, as occurred following previous election cycles that starred tough-on-crime rhetoric. Between 1973-2009, the nation saw an exponential growth in incarceration, from approximately 300,000 people in prisons and jails in 1973 to 2.2 million by 2009, making the U.S. the largest incarcerator in the world, with a rate 5 to 10 times higher than Western Europe and other democracies. Hundreds of new laws and practices passed at the local, state, and federal levels, including new mandatory minimums with harsh sentences, more cash bail and pretrial detention, and more aggressive prosecutorial and policing practices like stop-and-frisk.

Read More: Police Are Turning to an Old Tactic to Fight the Surge in Violence. But It Needs a Rethink

Along with mass incarceration came extreme racial inequities that spread well beyond the carceral system. A Black boy born in the 2000s had a 1 in 3 chance of ending up incarcerated, compared to a 1 in 17 chance for a white boy. Mass incarceration has contributed significantly to the racial achievement gap, poorer health outcomes in Black communities, and economic hardship for Black families. Mass incarceration also changed the political process, as millions of Americans became disenfranchised because of a felony record. Until as recently as 2016, more than 20% of Black Americans were disenfranchised in Florida, Kentucky, and Virginia because of a felony record. Today, 48 states continue in varying degrees to bar people with a criminal conviction from voting, which explains why scholars like Michelle Alexander have called mass incarceration the New Jim Crow.

This crisis in mass incarceration, which only recently began to dip, has roots that run deep in efforts to politicize and racialize crime. Mass incarceration has been fueled by moments like the one we are living in today, where following years of gains on civil rights, a backlash ensues and crime is conflated with reforms and civil rights protests.

In the 1960s, as demonstrations against the Jim Crow south were sweeping the nation and beginning to make progress, a backlash formed with tough-on-crime rhetoric at its core. Republicans began to attack Democrats as being soft on crime, blaming civil rights protests and new civil rights laws on rising crime rates. In the 1964 presidential election, Barry Goldwater attacked Democrats as endangering law and order, running political ads accusing them of “Juvenile Delinquency! Crime! Riots!” while images of protesters mixed with images of violence.

Goldwater lost in 1964, but he changed the policy trajectory of not only the Republican Party, but the Democratic Party as well, which eventually caved fully to the law-and-order playbook. In 1965, President Lyndon Johnson launched the first national war on crime, and in 1968, President Johnson and a Democratic Congress passed the Omnibus Crime Control and Safe Streets Act, which initially invested $400 million into the war on crime but eventually led to billions in federal money spent to hire more police and supply local police with military-grade equipment. As professor Elizabeth Hinton has documented, this led to more heavily armed police in Black neighborhoods and to a disproportionate increase in arrests of Black people, helping drive racial disparities in incarceration and undercutting other Great Society initiatives.

For the next 40 years, the tough on crime message gripped both political parties. Candidate Richard Nixon dedicated 17 speeches to the topic and ran television ads calling on voters to reject the lawlessness of the civil rights movement. Ronald Reagan focused on a war on drugs, George H. W. Bush on Willie Horton, and Bill Clinton on three strike laws, truth-in-sentencing laws and the 1994 Crime Bill, the largest crime bill in United States history.

It wasn’t until the past 10 years that a bipartisan movement for criminal justice reform formed, pushing for an alternative approach. This movement by Democrats and Republicans has worked together in states across the country to pass bipartisan reforms, such as sentencing reform in Louisiana and Oklahoma, bail reform in New Jersey and Colorado, second chance laws in Georgia, Michigan, Pennsylvania and Utah, drug law reform in Oregon and Rhode Island, and much more. The nationwide prison population began to drop to 1.2 million, and the U.S. moved from first to fifth place in the global ranking of imprisonment rates, right between Cuba and Panama. Families were reunited with their loved ones, and some of the states that have seen the largest decrease in incarceration are also some of the safest states in the nation, like New Jersey.

But today, just as nationwide incarceration rates were beginning to slowly drop, public anxiety over crime is being turned into a wedge issue between the two political parties to undermine progress made on civil rights and criminal justice reform. Bail reform, police reform, parole reform, and sentencing reform are wrongfully being blamed for a rise in crime. These criticisms come on the heels of gains made by the civil rights movement, this time under the banner of Black Lives Matter, which has drawn renewed attention to the nation’s history of police violence and white supremacy, and has generated among the largest civil rights protests in U.S. history.

Today’s midterm elections appear once again to hinge, in some part, on a conflation of civil rights with a rise in crime. Candidates for office are running ads reminiscent of the Barry Goldwater and Richard Nixon era, conflating political protests with crime, like the ad by Louisiana Senator John Kennedy blaming “woke leaders” for crime, and other political ads that show footage of Black Lives Matter protesters interspersed with images of violence. It doesn’t matter that crime is increasing in red states and red cities that have seen no significant criminal justice reform. These are, simply, inconvenient truths.

Unfortunately, this political strategy appears to be working. An October Pew Research Center poll found 61% of registered voters saying violent crime is very important when making their decision on who to vote for this year, up from 54% in March. An October New York Times Siena College poll also found 3% of voters citing crime as the “most important problem” facing the country, up from 1% of voters in the same poll in July, a difference that can make or break a close election. While there is no evidence that nationwide crime soared during this period to explain this additional attention by voters, what appears to have changed is the additional spending on political ads touting a tough-on-crime message and increased coverage of the issue by Fox News, CNN, and MSNBC. In fact, a recent Gallup poll found that 56% of Americans think crime has gone up, the highest increase in perception of crime in 50 years, and contrary to the most recent data from both the Bureau of Justice Statistics and FBI showing no rise in the overall violent crime rate in 2021.

Yet it doesn’t have to be this way. Candidates for office can resist the tough-on-crime impulse that has grown so common since Barry Goldwater’s 1964 run for office. They can provide a new vision for safety, one that many communities have been calling for—one the emphasizes prevention and investments in public health, schools, jobs, housing and community support structures, and relegates incarceration to the last possible option, after all other intervention efforts have failed.

In fact, research conducted by organizations like Vera Action and HIT Strategies has found that while voters care deeply about crime, they want more than the one-dimensional tough-on-crime message being delivered. Candidates benefit by articulating a vision that recognizes that public safety is achieved when we provide people with the resources they need to thrive, like earning a living wage, receiving a good education, and having stable housing. Voters understand that police shouldn’t be the ones charged with solving every social problem, from kids skipping school to mental health needs to homelessness. Instead, voters are seeking long term solutions rooted in prevention, like a good education and a good job.

So far, too few politicians on both the right and left are moving away from the reflexive tough-on-crime rhetoric that has proven to be so devastating in the past. It won’t be clear until after the midterms how much this rhetoric has impacted voter choices, but the damage may have already been done. Unless more politicians change course, the U.S. is on the verge of a new wave of mass incarceration—as history repeats itself.

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