Editor’s Note: This piece originally appeared on Public Seminar.
The decline of America’s democratic institutions has emerged as a central issue in contemporary American politics. In response to voter suppression, manipulation through campaign finance, and foreign interference in elections, Democrats have proposed sweeping reforms to improve electoral integrity and accountability. With the For the People Act, for example, legislators proposed to improve ballot access, fight gerrymandering, and secure elections and lawmaking against manipulation and undue influence. Others have pushed to grant statehood to DC and Puerto Rico, to abolish the electoral college, and, at minimum, to remove the filibuster in the Senate. Advocates for political reform are responding to institutional roadblocks and various inequalities that are stymying the will of the people.
No matter what direction these efforts take, criminal justice issues should also occupy the attention of those who want to reclaim American democracy. To be sure, criminal justice debates about prisoner and ex-offender voting rights have already emerged as a key issue among Democratic presidential candidates. These conversations open up the possibility of building on the optimistically named First Step Act, passed at the end of 2018, which included sentencing reforms and encouraged prisoner participation in rehabilitative programs.
More transformative changes are necessary, though. The way criminal law is legislated, applied, and enforced has serious ramifications for whether our government embodies democratic ideals or not. Because the pathway to preserving democracy runs through criminal justice reform, criminal justice reformers ought to connect their concerns to emerging discussions about democracy and political equality.
To do this, supporters of criminal justice reform can take important lessons from the surge of discussion around the Green New Deal (GND). The GND hammers home the ways fighting climate change and economic inequality are inseparable, providing a model for tracking and confronting interlocking forms of inequality across different political conversations.
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The GND, as elaborated in a congressional resolution, calls for a transition to net-zero emissions. With its historically resonant name and calls for job guarantees, public investment, and a reinvigorated labor movement, the GND harkens back to past projects of social and political transformation. It outlines the damage climate change will cause, environmental goals meant to prevent this damage, and a number of measures meant to realize these goals while remaining committed to economic equality.
As with any transformative agenda, the GND has garnered its share of controversy and criticism. Whatever happens with its ambitious, unapologetic proposals, it has changed the public conversation about climate change and challenged Americans to think differently about this issue. The GND is also one of few recent public attempts in U.S. politics to recognize the scale of the problem climate change presents.
Along with expressing an understanding of the need for rapid, radical changes, the GND makes clear that climate policy cannot ignore justice and economic equality. It challenges approaches that treat climate change as strictly about efficiently pricing greenhouse gas emissions, contending that policymakers must take equity into account, too. The GND is not just about achieving an optimal level of emissions; it insists that climate policies cannot treat people unfairly or undermine their basic rights. Ignoring such considerations while imposing a carbon pricing system could seriously harm already vulnerable people. Dealing with climate change using policies built on the backs of the poor and middle class would be unjust, particularly given the ways a drastically unequal economy is driving climate change. Not only that, but such an approach threatens to be politically poisonous.
The GND promises to benefit precisely those who have lost out in the current economy, while chipping away at the power of the wealthy who have benefitted most from the status quo. It acknowledges social, economic, and racial inequality, connects them to climate change, and endeavors to simultaneously take all of these problems on. This approach confronts a serious social challenge from an egalitarian standpoint and, in doing so, makes clear why respecting equality in environmental and economic contexts is vital to meeting that challenge.
In a similar vein, criminal justice reformers ought to join the fight to defend democratic governance in America, bringing together discussions about equality in the political system and equality in the criminal justice system. Much like a just transition to a post-carbon economy requires reckoning with economic inequality, realizing democratic equality requires fighting the inequities of mass incarceration.
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Nonetheless, just as some want to conceptualize climate change as mainly a technological problem rather than a matter of justice, some separate criminal justice reform from democratic, egalitarian goals. Those who critique the prison system without connecting it to broader socio-political structures emphasize genuine, important failures like incarceration’s ineffectiveness and cost. Focusing on issues like public safety or the high costs of the carceral system may garner more consensus, but it won’t get at the deepest roots of the problem. These more conservative framings downplay or ignore the more radical, systematic critique supported by an approach strongly committed to political equality. They don’t allow criminal justice reformers to demonstrate their struggles’ intersection with ongoing fights for political equality.
One important overlap between these struggles is the way the system strips incarcerated people and ex-offenders of core social and political rights that ensure full belonging in a democratic society. In response, reformers should push for voting rights for prisoners and ex-offenders to be restored nationwide. Moreover, formerly incarcerated people should not lose the right to serve on a jury or receive public benefits. Using past crimes to deny citizens these rights means stripping them of equal status in the polity. They end up with less of a say and less of a stable position from which to participate in society. These denials have repercussions throughout the system, undermining social, economic, and political power in communities hit hardest by mass incarceration.
In addition, prison gerrymandering, which counts prisoners in the districts where they are incarcerated, rather than where they were residents, compounds political inequality. These practices will mean more representation for rural communities where prisons are often located and less representation for areas where people were residents prior to their incarceration. Such gerrymandering harms the political strength of poorer communities of color, in particular.
On top of that, political scientists Amy Lerman and Vesla Weaver have shown that punitive policing strategies encourage citizens to view government as a threat, rather than as a responsive, democratic system. Those who are treated as a suspect class end up less engaged in citizenship. Additionally, prisoners don’t receive sufficient opportunities to engage with public life or to prepare for active citizenship when released. Research confirms the ways incarceration promotes political alienation in incarcerated people and their communities. In light of all that, incarceration should be used sparingly and, when it is utilized, should be geared toward reintegrating people into citizenship rather than inflicting suffering.
A number of these issues will only be possible to address at the state and local level, and some of them may result from litigation rather than legislation, but that does not make them any less crucial to the project of reconstructing democracy. Democracy means that every citizen should enjoy political equality and the ability to hold their government accountable. Mass incarceration and punitive policing keep those goals out of reach.
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There are multiple arguments and avenues for chipping away at the evils of criminal justice system. Reformers can attack its cost, its irrationality, its injustice, its racism, its cruelty, and more. Its obstruction of democratic equality must also be emphasized. The GND offers a model for how advocates can prevent criminal justice reform and political reform from becoming two separate conversations. Restoring voting rights, fighting prison gerrymandering, and enacting anti-discrimination rules for formerly incarcerated people should be packaged with the reduction and transformation of incarceration, as well as democratic reforms like the For the People Act. This approach completely rejects using the criminal justice system to warehouse people, instead adopting a transformed conception of criminal law that situates reform in the context of the ongoing struggle for democracy and equal political power.
Seth Mayer
Seth Mayer is assistant professor of philosophy at Manchester University, Indiana. His published and forthcoming work addresses issues in democratic theory, criminal law and philosophy, climate change, and human rights.
