Criminal justice reform has made significant advances during my time in the movement. But the continuing influence of the carceral lobby has also inflicted severe setbacks. As we work to create a more just system and society, we have to account and plan not just for the endgame, but for what’s occurring in the moment.
As a speaker for the Law Enforcement Action Partnership and its current chair, let me first underline our opposition to police violence and our support for the resulting wave of nonviolent protests across the country.
These reactions to the killings of George Floyd, Breonna Taylor, Ahmaud Arbury and others create opportunities to transform policing. What’s largely missing are the strategic plans that could achieve not only that transformation but one of the entire criminal justice system—by engaging and convincing a majority of the population. Such strategies must anticipate the inevitable blowback from our opponents and those members of the public who support “tough-on-crime” policies—policies that continue to be supported by the average American’s lack of understanding of the causes of crime.
Professor Patrick Sharkey made this point in a Washington Post piece about how defunding the police can work. He shared my concern that without adequately scaling and presenting model defunding programs, any ensuing rise in violence will see “…Americans of all races become more punitive, supporting harsher policing and criminal justice policies. That’s how we got to this point.”
Crime data, often used selectively, can easily be deployed to fuel political rhetoric and maintain the status quo.
Because that’s how the carceral lobby has always successfully driven home its message. They won’t lack opportunity. Just last week, the Washington Post published another article, describing how “crime rose unevenly when stay-at-home order lifted.” Crime data, often used selectively, can easily be deployed to fuel political rhetoric and maintain the status quo.
There are many recent examples of how pro-carceral groups use the fear of crime to push back against reform. Take California, and the backlash against Proposition 47—an initiative, approved by voters in 2014, that was designed to reduce incarceration while reallocating fiscal resources away from police and back into communities to make them safer. Despite the research reflecting that the “backlash is unfounded,” organizations like Keep California Safe have “waged a public campaign against successful criminal reform.” The result was the placement of a ballot initiative this election that would roll back gains made since the passage of Proposition 47.
It’s not just California. You only need to look at the bail reform rollbacks or the fight to shield police disciplinary records in New York to understand the power and influence of the Police Benevolent Association and police unions across the nation.
The Public Opinion Problem
Connected with an understanding of the formidable forces ranged against us, we also need to appreciate the reality of where public opinion currently stands—and the many nuanced factors that inform these views.
Polling conducted since the death of George Floyd on how Americans feel about defunding the police, including Gallup and the latest Monmouth poll on race relations, reflects these complexities. The political data site FiveThirtyEight averaged four national polls conducted in mid-June, at the height of the protests, finding 31 percent in favor of defunding the police and 58 percent opposed.
In addition to asking the question on defunding, the Gallup poll also found:
“When asked whether they want the police to spend more time, the same amount of time or less time than they currently do in their area, most Black Americans—61%—want the police presence to remain the same. This is similar to the 67% of all US adults preferring the status quo, including 71% of White Americans.
Meanwhile, nearly equal proportions of Black Americans say they would like the police to spend more time in their area (20%) as say they’d like them to spend less time there (19%).”
For sure, there are many valid counterpoints to such findings. Public opinion can change—support for defunding, while well short of a majority, is much higher than in the past—and public opposition should not stop our advocating for what’s right. The historical trajectory of public support for marijuana legalization, which rose from 25 percent in the late 1990s to 66 percent today, is a perfect example of how advocacy can change minds.
It may jar with our worldview, but denying that current reality doesn’t help us.
We should work optimistically and think big, but I offer two cautions. First, that public support for reforms can go down as well as up—just as approval for marijuana legalization, having peaked at 28 percent in 1977 (according to Pew), fell off as the War on Drugs kicked in, then took two decades to recover to that level. And second, that we do need to do the hard work of persuading people.
It may jar with our worldview that even communities marginalized by systemic racism and policing practices just want good policing, not police abolition or defunding, but denying that current reality doesn’t help us. Successful advocacy may take many years. If that proves to be the case with the national-scale establishment of non-law enforcement responses to crime, it is imperative that we achieve other things in the meantime.
We can both develop and advocate for sweeping policy changes, while simultaneously recognizing that even incremental reforms have made and can make crucial differences in people’s lives.
Starting With What We Can Win
My own work in harm reduction and drug policy reflects this dynamic tension between how we plan for the ideal future while also addressing immediate needs of our communities by working within the politics of now. Reform is not linear, transforming an entrenched system rooted in punishment will not happen overnight, and we ignore public opinion at our peril.
How can we convince people who may fear the radical transformations we envisage? One important way is by demonstrating to them how unthreatening steps in this direction can be—by designing and implementing policies that scale up non-law enforcement first responder resources while scaling down police budgets and reach. Proven successes of such measures, including enhanced community safety, can become winning arguments as we seek to advance further.
Change of this nature will require deconstructing the current system piece by piece, and starting in the areas where we already have consensus is logical.
We have to take the public with us every step of the way—by seeking inclusive community input on central questions like “What are the Police for?” and by developing consensus on the meaning of public safety and who should be responsible for it. I would suggest framing this by adopting the term “community-led health and safety”—a concept that views crime reduction through a multi-disciplinary lens, centering the interdependence of social, cultural and socioeconomic factors on health and opportunity, as well as crime.
The dismantling and rebuilding of policing and its alternatives around community values and under community leadership—in ways that invest in people, not a system of “punishment and abandonment”—is a clear but complex goal, and one whose outcomes will look different in different contexts. Change of this nature will require deconstructing the current system piece by piece, and starting in the areas where we already have consensus is logical.
One area in which Americans have widely agreed for years is the failure of our drug policy. A 2012 Angus Reid poll found that only “10% of respondents believe that the War on Drugs … has been a success, while 66% deem it a failure. Majorities of Democrats (63%), Republicans (63%) and Independents (69%) alike agree with the notion that the War on Drugs has not been fruitful.” A 2014 Pew Poll showed that 67 percent favored treatment not jail for heroin and cocaine use. And a 2019 CATO poll reflected that 55 percent favor decriminalizing all drugs.
Defunding the drug war is clearly an action that will help us to dismantle policing practices that subvert our constitutional rights, entrench structural racism, corrupt police themselves and destroy the prospects of establishing community-led health and safety structures.
The LEAD Example
Despite advances like marijuana legalization, sentencing reform, Good Samaritan laws or Oregon’s current ballot measure to decriminalize drug possession, many politicians have been slow to respond to the public will to pull apart the drug war. Organizations like my own, the Drug Policy Alliance*, the National Harm Reduction Coalition and many others have worked to win these victories and speed these changes. But one program that has for years been making a real difference in the lives of people who use drugs, actually preventing them from being criminalized, is Law Enforcement Assisted Diversion (LEAD).
LEAD essentially works by diverting eligible people who come into contact with police to social services, rather than jail and criminal charges. I have often written about LEAD, admiring the way it has worked, since 2011, within the reality of our current structures to help thousands of criminalized people right now, rather than postponing intervention until we can get laws changed.
I have always recognized it as a forward step, rather than an end goal, and one that should keep evolving.
LEAD is embedded within the very system that we want to change—albeit that is exactly where great harms can be prevented—and initially focused on people who use drugs, rather than casting a wider net to include many other marginalized and criminalized groups. For these reasons, I have always recognized it as a forward step, rather than an end goal, and one that should keep evolving.
The architects of LEAD have always recognized this too.
“The LEAD framework is all about reducing harm and shifting the paradigm through which our society has responded to marginalized people and vulnerable populations for decades,” Chief Brendan Cox, director of policing strategies for the LEAD National Support Bureau and a LEAP speaker, told me. “While police were the portal through which enormous numbers were detained and punished, change had to interrupt that flow of people to prisons and courtrooms. Not engaging the police would have abandoned those people.”
The evolution that was always anticipated is happening. “It has never made sense to condition access to high-quality care on police contact, and LEAD has always been structured to reduce police involvement,” Cox said. “LEAD has evolved, through partnership with communities across the country, from pre-booking police diversion, to police-centered pre-arrest social contact referrals, to the newly established Let Everyone Advance with Dignity, which allows community members to make direct referrals without any police involvement or approval. Public safety transformation can not happen overnight, yet through this continued shift, LEAD continues to further de-center the criminal legal system’s role in providing life changing services to those most in need.”
As we continue to reallocate law enforcement resources back to communities and to reduce the gatekeeping role of the police, I would suggest that LEAD—above all in its emerging community referrals-based guise—should eventually replace problematic drug courts, non-coercively offering services to a wide range of people in need.
But above all, were it not for LEAD, countless more lives would have been ruined by convictions, incarceration and criminal records.
So this is where I differ from some, though not all, of the views expressed by Filter’s Helen Redmond in her recent piece about LEAD. She described LEAD advocates’ belief in the “potential for reconciliation and healing in police-community relations” as naive. Yet to pin all our hopes on the rapid implementation of radical structural reform that doesn’t currently enjoy majority public support, passing up chances to reduce the harms of the system in the interim, could be described similarly.
Kevin Sabet, the prominent opponent of marijuana legalization, likes to claim that legalizers promised legalization would end racial disparities in arrests. Only, we never said that. Racial disparities in marijuana arrests have sadly continued in many jurisdictions post-legalization—ending racism, like transforming the criminal justice system, is a long haul, despite its urgency.
But what legalization has done is greatly reduce overall numbers of arrests, removing the harms of criminalization for many people, including, in absolute numbers, people of color. We haven’t reached our destination, but we have advanced.
Similar charges are sometimes leveled at LEAD, including by sources quoted in the Filter piece. It is right to note with concern that LEAD’s exclusion criteria regarding past convictions disproportionately affect people of color because of the systemic racism baked into the criminal justice system and wider society. That must be addressed. But did LEAD ever claim it would end racism in the system? It did not.
Keith Brown, a former LEAD project director, told Filter, “All LEAD can do is mitigate or otherwise reduce the harms of racial disparities.” It was a criticism of the program, but equally reflects some of what it can achieve: nowhere near everything we want, but still a meaningful difference to many people’s lives.
Neither does the existence of LEAD in any way hold back other forms of progress. I would argue the reverse. The program’s role in changing the drug policy conversation—including within the culture of law enforcement, with all the impact that may have on skeptical members of the public—should not be underestimated. Examples include calls and support by law enforcement for the decriminalization of simple possession of drugs here and abroad, the need for a safe drug supply, safe consumption sites, drug checking services, the discussion of the failure of drug courts and incarceration, as well as the introduction of social contact referrals, moving people away from the justice system and toward community health and social services.
Helping people now, in whatever ways we can, is just as valid as thinking longer-term.
Many people in the harm reduction community express important concerns about every kind of incremental or imperfect reform. I do, too. It is vital that we air these criticisms, that programs are scrutinized with a view to improvement, and that we never lose sight of our ultimate goals.
But to frame radical and incremental reforms—in the context of public opinion and our hard-earned experience of what it takes to win—as enemies, rather than different points on the spectrum of positive change, is counterproductive and wrong.
Helping people now, in whatever ways we can, is just as valid as thinking longer-term. By viewing these approaches as complementary and mutually compatible, our movement becomes stronger and does more real-world good.
*The Drug Policy Alliance previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship. LEAP was previously the fiscal sponsor of The Influence Foundation.