Similar to so many issues in our polarized society, criminal justice reform splits along the political divide. While many on both sides of the aisle agree that our criminal justice system needs to be reformed, the approaches of the two sides are drastically different. On the left, the progressive approach is one that favors relaxing arrests, limiting prosecutions and reducing charges for a myriad of crimes. The other approach, favored by conservatives and the Trump Administration, is to reform harsh sentences that have contributed to America’s high incarceration rate, while examining clemency and civil rights restoration initiatives for those who have already paid their debt to society.

One recent disturbing trend illustrates this gap exactly. Local Democratic officials across the country are seemingly seizing an “opportunity” presented by the Coronavirus outbreak to advocate for limited policing and mass de-carceration of prisoners. New York has freed more than 1,500 inmates and is preparing to spring loose many more, while Los Angeles has released upwards of 1,700. New Jersey’s high court approved the release of as many as 1,000 county inmates, while in Philadelphia — despite a 15% rise in murders this year and a court system that has been shuttered due to the outbreak — District Attorney Larry Krasner is calling to drastically reduce the city’s jail population.

Local Democratic officials across the country are seemingly seizing an “opportunity” presented by the Coronavirus outbreak to advocate for limited policing and mass de-carceration of prisoners.

These initiatives are drawing strong criticism. In New York, two of the men slated for release by the DiBlasio administration were allegedly involved in a robbery where a New York City police detective was killed by fellow officers in a shoot-out during their arrest. This release was halted when prosecutors intervened, but it serves as an example of how little oversight is seemingly undertaken when “health emergencies” are used as an excuse to send potentially-violent criminals, en masse, back into the community.

Using COVID-19 as a “back-door” criminal justice reform technique doesn’t just affect jail populations. 

This month, Philadelphia Police ordered officers to halt arrests for drug offenses and many “low-level” crimes. Simultaneously, DA Krasner’s administration introduced a dangerous new bail policy which eliminated pretrial incarceration when defendants could not afford cash bail, fulfilling a two year old campaign promise. One frightening example of such efforts is the case of Hassan Elliot, who by all accounts should have been in jail but for repeated sweetheart deals from Krasner’s office over weapons and narcotics charges — and who was free to start a gun fight that ended with the killing of Philly SWAT Cpl. James O’Conner in March.

These policies follow a nationwide trend, presented by advocates as a public safety measure during Covid-19, but at the same time failing to address community vulnerabilities and rising violent crime rates. More puzzling is the fact that, despite inmates’ proximity with each other, the ability to treat and medically screen inmates in a locked facility is arguably more effective as opposed to releasing them into the public, potentially without access to healthcare.

The argument can be made, then, that it’s not even safer for the inmates to get out of jail during a pandemic. Society has a tough enough time with reentry during the easy times — and we are not living in easy times. 

Whether it’s through the election of radical prosecutors, appointing law enforcement executives that reject the principles of “broken windows policing” through non-enforcement of certain crimes, or judges who conspicuously side with defendants, the progressive approach to criminal justice reform has dangerous side effects for public safety. 

The argument can be made, then, that it’s not even safer for the inmates to get out of jail during a pandemic.

Just as importantly, these strategies are “backdoors” from the legislation and legal rulings required to constitutionally change the law. Instead of citing rulings by high courts or engaging in transparent public debate to legislate the repeal or modification of a law, many local “progressive” officials have chosen to simply ignore them.

Over a year ago, the Criminal Justice reform movement led to one of the only productive bipartisan debates in Washington, before the “Russiagate” and impeachment fiascos took center stage. Unlike past administrations, President Trump’s has placed his clemency initiatives in plain sight; a departure from the customary practice of quietly issuing pardons to the politically connected at the end of a Presidential term. President Trump has issued clemency to military servicemen as well as people from drug conspirator Alice Marie Johnson (who starred in the President’s Super Bowl reelection ad) to disgraced former law enforcement officials like Joe Arpaio and Bernard Kerik. 

Experts on both sides of the aisle can agree that America has a flawed criminal justice system, not due to the rare wrongful conviction, but due to sentencing that may be excessive in length relative to the crime at hand. The system has traditionally failed to acknowledge how some are railroaded due to politics, and how the goal of corrections is to rehabilitate people; yet ex-cons are forced to carry the lifelong scar of a criminal record that negates that rehabilitation on paper. Regardless of what side of the aisle you’re on, we all recognize that society and laws change. Criminal justice reform is a necessary and worthy issue to address, but needs to be done safely and transparently, favoring those who have demonstrated their rehabilitation — not those who are actively engaged in criminal activity.

Instead of citing rulings by high courts or engaging in transparent public debate to legislate the repeal or modification of a law, many local “progressive” officials have chosen to simply ignore them.

It is unethical for a public official to unilaterally decide what laws should or shouldn’t be enforced without legislative debate or judicial rulings. Considering the estimated 19 million Americans with criminal records, it’s far more responsible to consider the creation of an apolitical pardon initiative (like restoring funding for the federal civil rights reinstatement programs once used by the Alcohol, Tobacco and Firearms Bureau to restore firearms rights to citizens), and modeling it after the New York State Certificate of Relief from Civil Disabilities program.

A federal program like this would clear burdensome criminal records of those who have proven long-time rehabilitation or whose record reflects crimes that may have since been overturned, upon successful investigations — and it may bridge the gap, and the political divide, over criminal justice reform in our politics. Doing this would give millions of Americans a second chance on a case-by-case basis, without a need to be politically “connected”.

A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his own experiences on both sides the criminal justice system. He has served as a federal and municipal law enforcement officer and was the former Director, Office of Investigations with the American Board of Internal Medicine.

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