Sec. Clinton’s Criminal Justice Reform Proposals

Today, presidential candidate Hillary Rodham Clinton addressed criminal justice reform in a speech at Columbia University. Earlier in the week, the Brennan Center released a book with chapters from politicians across the political spectrum discussing the need for criminal justice reform, and Secretary Clinton contributed one of them. Now that the Democratic front-runner has joined Republican presidential aspirants in addressing reform, criminal justice appears to be a significant 2016 campaign issue.

Three of Clinton’s policy suggestions are problematic.

First, and perhaps the one that will get the most headlines, she called for making police body cameras “the norm everywhere,” by using federal grants and matching funds. Putting aside the considerable price tag to subsidize the roughly 18,000 American law enforcement agencies to buy body cameras, how officers use those cameras and how law enforcement uses their data must be of utmost concern. As my colleague Matthew Feeney noted in a blogpost yesterday, the proposed body camera policy in Los Angeles would allow officers to review body camera footage before giving statements on use of force incidents. That policy would not serve transparency interests, but instead police officer self-interest.

Throwing money for cameras to local police departments as a solution to police transparency may sound good in theory, but making it work will be much more difficult in practice. 

Second, she argued that low-level offenders, “must be some way registered in the criminal justice system.” The criminalization of drug consumption has been one of the primary drivers of incarceration. Diverting low-level offenses to drug courts, as Clinton suggests, could be an improvement over jailing offenders, but for many of these cases, it’s not clear that the criminal justice system should be involved at all.

When implemented properly, diversion may be appropriate for petty crimes like shoplifting or nuisance offences that may arise from addiction or abuse. But simple possession of most drugs is still a crime in all 50 states, adding thousands of Americans to the criminal justice system that have no business being there. Many of those people have the mental health and substance abuse problems Clinton addressed in her speech.

Society can discourage behavior by means other than the criminal law. Education, economic opportunity, and social norms can combine to deter substance abuse in the private sphere. While not ideal to libertarians, a system of taxes, fines, and regulations could be utilized by governments to discourage use without involving the criminal justice system at all. But any policy that continues to criminalize the effects and symptoms of underlying conditions like addiction will invariably lead to the broken families and diminished employment prospects for our most vulnerable citizens.

Third, Clinton discussed the “quiet epidemic” of drug use in middle and suburban America. While the overall tone of the speech lamented racial disparities and disparate socio-economic outcomes, this passage affirmed the misconception that drug use is, was or has been just an “inner city” problem. Yet whites and blacks use drugs at roughly the same rates, per capita. That enforcement has concentrated most heavily in minority communities does not mean drugs are new to the rest of the country.

Calling any drug use an “epidemic” harkens back to the overblown crack scare of the 1980s, which fueled the arguments for mandatory minimum sentences and 100:1 crack-to-powder sentencing disparity. In a recent Heritage Foundation event on the future of marijuana policy, a medical expert frankly stated that only about 10 percent of drug (and alcohol) users become problem users. Unfortunately, most calls for diversion to treatment do not distinguish between the minority who develop drug problems and the 90 percent of adult users who do not experience significant negative health or life effects.

In all, what Secretary Clinton proposed today was a large amount of federal and state spending on tools that are already being misapplied throughout our country. Body cameras can improve police-public interactions, but it will take more than grants and matching funds to make their applications useful.  Giving people the choice between jail or counseling when neither is appropriate is a fundamental misallocation of resources. Every seat in treatment taken by an otherwise functioning adult is one fewer seat available to the addict who is struggling with her addiction. Misunderstanding the very real problem of addiction is compounded by misusing the criminal justice system to address it.

As Jonathan Simon argues in his book, Governing Through Crime, America needs a new approach to how we think about crime. Instead of using the criminal law as a first choice to fix society’s problems, it should be the last resort after policymakers have exhausted all other remedies. Secretary Clinton’s proposals, though well-intentioned, will be expensive and ultimately ineffective in fixing the disparities that inspired them.