Criminal Justice: One Of The Enormous Non-Issues Of Presidential Politics

What happened to "the land of the free"?

In February, we reached an all-time high, with one out of 100 American adults incarcerated. Some groups are hit particularly hard; one out of every 15 African American adults were behind bars as of 2006.

In April, Adam Liptak started off a piece for the International Herald Tribune with two straightforward but powerful sentences: "The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners."

Despite all this, we've heard more political talk this election season about magazine covers and denounced pastors than we have about our plans for the more than 2 million Americans behind bars and the hundreds of thousands who will join them there in the next four years.

Maybe having millions locked up is an unfortunate necessity, an unavoidable fact of life in America as it has been constructed. But shouldn't we at least be talking about why we are, at best, vying for second place in the rankings of "most imprisoned" with China? Shouldn't we at least be talking on the national political level about the links, say, between education and imprisonment, between the failed war on drugs and our untenable incarceration rates?

During this race for the White House, the political discussions will focus on other issues, some arguably more important than criminal justice -- others clearly not.

Fact is, says Robert Weisberg, director of the Stanford Criminal Justice Center, "presidents don't have that much control over criminal justice. Almost all the action is at the state level."

Others are talking this time about the distinct possibility of a symbolic impact -- the first African-American president sending the message to millions of minority children that there truly is no limit to what they can accomplish.

"The United States has horrific incarceration rates, both with respect to the number of people we have in prison and the length of time we keep them there," said Elizabeth Rapaport, a professor at the University of New Mexico School of Law. "The effects on communities of color and in particular blacks are horrendous."

Stephen Bright, president of the Southern Center for Human Rights, also feels that our policies on crime and punishment are often detrimental.

"I think our criminal justice policies are destroying people, and they're destroying families, and they're destroying communities," he said. "If you really want to deal with crime in this society you have to offer people education, opportunity, and hope -- and when those things aren't there, you're going to have a problem... What I think would be sort of incalculable with regard to an Obama presidency is that these African American boys that are growing up would actually realistically think that maybe someday that could be them, that there is hope, that they aren't shut out of everything -- that an African American could study hard, work hard, and could actually end up being President of the United States!"

He added: "I think it would have a positive effect and I think it would deal with what I see as one of the biggest problems, which is hopelessness in the communities where I work... I think it contributes to crime, and I think if you change that -- and if you give people hope and you give them something to aspire to -- I don't think there's any question about it... it would have a huge impact on crime."

Apart from any symbolic impact, a U.S. President does have a number of tools at his disposal were he determined to impact our criminal justice system, ranging from Supreme Court appointments to his spot at the supreme bully pulpit.

Obama has a background of reform in this area. While a member of the Illinois Senate, he responded to a number of false-positive capital cases by working to pass legislation requiring police interrogations be tape-recorded.

"There was a lot of resistance to that as I understand it in the Illinois legislature, and Obama was instrumental in bringing people together and getting a bill through that people could agree on, so I think that speaks very well of him," said Bright.

McCain has experienced imprisonment (and torture) first-hand, which has certainly impacted his worldview.

But are either of these candidates likely to make criminal justice reform a key issue once in office?

Weisberg feels there are too many variables involved to accurately predict what either man will do once in office. However, he notes that both have something going for them.

"Bill Clinton did one good thing above all which was to increase funding for state and local police -- but on the whole, he was part of the nuclear truce, and didn't do anything of great value. So Obama is simply not Clinton," he said.

In terms of McCain, he referenced Nixon"s trip to China.

"McCain is an unconventional Republican. Some of the most interesting things that have happened at the state level in recent years have come from unconventional Republicans."

Nevertheless, he believes both may largely avoid the issue, calling crime "less salient" because of an increasingly low crime rate.

"Politicians -- if they're not going to just demagogue the issue -- are going to have to say something a little more complicated, and [they] don't want to say anything complicated," said Weisberg. "If it's hard to explain in five words, then you'll be called an elitist."

Rapaport agrees that there is a change in the tide of public sentiment, and feels that a candidate like Obama -- who says "thoughtful things" and actually speaks in "paragraphs" as opposed to soundbites -- might be willing to address the topic.

"I think the good news is that the punitive impulse and the exploitation of it politically has begun to wane," said Rapaport. "People in legislatures all over the country are raising their heads and saying 'what if,' and they're not being destroyed for it."

But while she remains hopeful, Rapaport wouldn't bet on either candidate tethering themselves to the issue.

"Would a president waste scarce political capital on people who are feared and despised just because the system is out of control, vastly costly, racially unjust, and a failure in so many ways? If you ask me to predict or even to make a monied bet on it, I would say 'no.'"