This marks Mr. Keller’s last visit to the op-ed pages. He has a question in “Crime and Punishment and Obama:” Where’s the community organizer when we need him? In “Health Care Horror Hooey” Prof. Krugman looks at when bad things happen to imaginary people. Here is Mr. Keller’s swan song:
I doubt any president has been as well equipped as Barack Obama to appreciate the vicious cycle of American crime and punishment. As a community organizer in Chicago in the 1980s, he would have witnessed the way a system intended to protect the public siphoned off young black men, gave them an advanced education in brutality, and then returned them to the streets unqualified for — and too often, given the barriers to employment faced by those who have done time, disqualified from — anything but a life of more crime. He would have understood that the suffering of victims and the debasing of offenders were often two sides of the same coin.
It’s hard to tell how deeply he actually absorbed this knowledge. In the Chicago chapters of his memoir, “Dreams From My Father,” Obama notes that in the low-income housing projects “prison records had been passed down from father to son for more than a generation,” but he has surprisingly little to say about the shadow cast by prisons on the families left behind, about the way incarceration became the default therapy for drug addicts and the mentally ill, about the abject failure of rehabilitation.
Still, when the former community organizer took office, advocates of reform had high expectations.
In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system. It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far.
I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents — who are also disproportionately the victims of crime — are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.
And yet Obama took office at a time of tidal shifts. The economics of imprisonment, the ebbing of crime rates, the horror stories of overcrowded penitentiaries and the persistent activism of reform advocates had begun to generate a public consensus that merely caging people is not a crime-fighting strategy. Fiscal conservatives alarmed at the high cost of incarceration, evangelicals shocked by the waste of lives, and libertarians who spotted another realm of government power abused have clambered onto what was once a liberal bandwagon. (How much those conservatives will be willing to invest in alternative ways of protecting the public — drug treatment, more intensive parole and probation programs, job training and so on — is another question.)
In his first term Obama did not make this a signature issue; he rarely mentioned the subject. But his proxy, Attorney General Eric Holder Jr., was outspoken from the start. Six months into the first term, he was already at the Vera Institute of Justice in New York talking about the social costs of mass incarceration and pressing for policies that would divert low-level drug offenders to treatment and ease the re-entry of former prisoners into a productive life. In the last five years, Holder has become increasingly bold, and encountered little backlash. This month he exhorted states to repeal policies that deny felons the right to vote, policies that disenfranchise 5.8 million Americans, including nearly one in 13 African-American adults. He framed it not just as an act of compassion but as a way of re-engaging prodigal souls.
“By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes,” Holder said.
“All that sounds very good,” said Michelle Alexander, the legal scholar who wrote “The New Jim Crow,” a scorching 2010 indictment of the racialized war on drugs. ”And it is good, because for decades the rhetoric was running in the other direction. But if the rhetoric is not matched with action … then it is fair to wonder whether the shift in rhetoric reflects significant shifts in public opinion in recent years, rather than a real commitment to these issues and a willingness to take political risks.”
In practice, the administration’s record has been more incremental than its rhetoric.
By the crudest metric, the population of our prisons, the Obama administration has been unimpressive. The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row. However the overall downsizing is largely thanks to California and a handful of other states. In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.
The administration has some achievements to tout. Obama signed the 2010 Fair Sentencing Act, and has put some muscle behind the Smarter Sentencing Act, two measures aimed at making drug-sentencing laws less absurd. Holder has issued guidance to prosecutors to avoid routinely seeking maximum sentences for low-level offenders — though it’s not clear yet whether prosecutors are going along. The administration created an Interagency Reentry Council that uses federal guidance to whittle away at the barriers to employment, housing and education so that released prisoners have some hope of becoming productive citizens.
At the same time, long after the War on Drugs has been recognized as a failure, there has been little serious effort to cut the number of federal drug prosecutions, or to shift money from incarceration to drug treatment. Alexander cites as a significant disappointment the continued federal reluctance to decriminalize marijuana, despite Obama’s acknowledgment to David Remnick of The New Yorker that pot is less harmful than alcohol and that the laws are mostly enforced against poor minorities. Another missed opportunity: he could have pushed more aggressively to fill district and circuit court vacancies with judges who would buck the status quo.
Obama has also been the stingiest of recent presidents in using his powers of pardon and commutation to undo the damage of the crack panic and of sentencing that keeps prisoners in lockup long past the age when they represent a danger. Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a conservative think tank with a justice reform agenda, points out that in his first term Obama pardoned one in 50 applicants while Ronald Reagan pardoned one in three. Late last year Obama commuted the sentences of eight drug offenders, out of more than 8,000 federal convicts serving time under outdated crack laws.
Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it. And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered. That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.
The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.
“This is something that matters to the president,” Holder assured me last week. “This is, I think, going to be seen as a defining legacy for this administration.”
I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking.
Now here’s Prof. Krugman:
Remember the “death tax”? The estate tax is quite literally a millionaire’s tax — a tax that affects only a tiny minority of the population, and is mostly paid by a handful of very wealthy heirs. Nonetheless, right-wingers have successfully convinced many voters that the tax is a cruel burden on ordinary Americans — that all across the nation small businesses and family farms are being broken up to pay crushing estate tax liabilities.
You might think that such heart-wrenching cases are actually quite rare, but you’d be wrong: they aren’t rare; they’re nonexistent. In particular, nobody has ever come up with a real modern example of a family farm sold to meet estate taxes. The whole “death tax” campaign has rested on eliciting human sympathy for purely imaginary victims.
And now they’re trying a similar campaign against health reform.
I’m not sure whether conservatives realize yet that their Plan A on health reform — wait for Obamacare’s inevitable collapse, and reap the political rewards — isn’t working. But it isn’t. Enrollments have recovered strongly from the law’s disastrous start-up; in California, which had a working website from the beginning, enrollment has already exceeded first-year projections. The mix of people signed up so far is older than planners had hoped, but not enough so to cause big premium hikes, let alone the often-predicted “death spiral.”
And conservatives don’t really have a Plan B — in their world, nobody even dares mention the possibility that health reform might actually prove workable. Still, you can already see some on the right groping toward a new strategy, one that relies on highlighting examples of the terrible harm Obamacare does. There’s only one problem: they haven’t managed to come up with any real examples. Consider several recent ventures on the right:
■ In the official G.O.P. response to the State of the Union address, Representative Cathy McMorris Rodgers alluded to the case of “Bette in Spokane,” who supposedly lost her good health insurance coverage and was forced to pay nearly $700 more a month in premiums. Local reporters located the real Bette, and found that the story was completely misleading: her original policy provided very little protection, and she could get a much better plan for much less than the claimed cost.
■ In Louisiana, the AstroTurf (fake grass-roots) group Americans for Prosperity — the group appears to be largely financed and controlled by the Koch brothers and other wealthy donors — has been running ads targeting Senator Mary Landrieu. In these ads, we see what appear to be ordinary Louisiana residents receiving notices telling them that their insurance policies have been canceled because of Obamacare. But the people in the ads are, in fact, paid actors, and the scenes they play aren’t re-enactments of real events — they’re “emblematic,” says a spokesman for the group.
■ In Michigan, Americans for Prosperity is running an ad that does feature a real person. But is she telling a real story? In the ad, Julia Boonstra, who is suffering from leukemia, declares that her insurance has been canceled, that the new policy will have unaffordable out-of-pocket costs, and that “If I do not receive my medication, I will die.” But Glenn Kessler of The Washington Post tried to check the facts, and learned that thanks to lower premiums she will almost surely save nearly as much if not more than she will be paying in higher out-of-pocket costs. A spokesman for Americans for Prosperity responded to questions about the numbers with bluster and double-talk — this is about “a real person suffering from blood cancer, not some neat and tidy White House PowerPoint.”
Even supporters of health reform are somewhat surprised by the right’s apparent inability to come up with real cases of hardship. Surely there must be some people somewhere actually being hurt by a reform that affects millions of Americans. Why can’t the right find these people and exploit them?
The most likely answer is that the true losers from Obamacare generally aren’t very sympathetic. For the most part, they’re either very affluent people affected by the special taxes that help finance reform, or at least moderately well-off young men in very good health who can no longer buy cheap, minimalist plans. Neither group would play well in tear-jerker ads.
No, what the right wants are struggling average Americans, preferably women, facing financial devastation from health reform. So those are the tales they’re telling, even though they haven’t been able to come up with any real examples.
Hey, I have a suggestion: Why not have ads in which actors play Americans who have both lost their insurance thanks to Obamacare and lost the family farm to the death tax? I mean, once you’re just making stuff up, anything goes.