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Hillary Clinton Is Not a Criminal Justice Reformer

Her stance on capital punishment is incomprehensible—and that doesn't bode well for the rest of her carceral policies.

Bill Pugliano/Getty

Hillary Clinton arrived at the latest Democratic town hall ready to talk Trump and Sanders, but left wondering how to talk about Jackson. Ricky Jackson, a man wrongfully imprisoned for 39 years for murder, asked one of the toughest questions posed to Clinton this cycle. After presenting his story of near execution, Jackson wanted “to know how can you still take your stance on the death penalty, in light of what you know right now?” 

Like the week before, when she was prompted by Rachel Maddow, Clinton resorted to her pretzel position on capital punishment, centered around an uneasy admission: “Maybe it is a distinction that’s hard to support.” She went on to reiterate a position that is difficult to understand—never mind support. If I have Clinton’s position correct, it’s this: States can’t be trusted to carry out capital punishment fairly, and Clinton would appreciate that either the states or the Supreme Court put an end to it—but she wants to reserve it for particularly heinous crimes in the federal system. (Sanders’s position: “No.”) She left unsaid where to draw the line on evil, or how cases will be federalized. To Jackson, she added that she’d “breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty”—which seems like an answer for an indentured executioner or someone on death row, not a candidate asserting their stance as president. In essence, she wants the penalty partially abolished, but refuses to do any reforming; in the meantime, she will support it on principle, if not in its application. Jackson initially told press after the event that he, understandably, hadn’t been able to grasp her response, and later penned an op-ed against it. 

However convoluted, her message is essentially support for the status quo. Hillary Clinton, the candidate or president, will not actively work to abolish capital punishment. As a single issue, it’s a problem for Clinton with liberal voters. But as part of a larger criminal justice discussion, it’s potentially crippling. Besides being a rhetorically weak and a morally questionable position, there’s a much deeper problem with Clinton’s support for capital punishment. Given her past support for the 1990s crime bill that helped shuffle this country’s citizens to prison, Clinton’s equivocation on the death penalty, versus Sanders’s strong stand, merits particular scrutiny. It’s a sign that she might not be the convert she claims to be, or that her zeal is, at best, superficial. Judging by her position on the death penalty, Clinton’s signaling something different: She won’t be an authentic criminal justice reformer. Consider how the death penalty functions as part of the criminal justice system, and then as a symbol of the system itself.

Capital punishment is not isolated from other criminal justice issues, because it establishes the upper bound of what society deems legitimate punishment. Next to it, sentences of life without parole—also considered unsavory torture by most of our global peers—looks merciful. Thirty-year sentences, unheard of in most countries, are normalized. A recent example: that the dispute between liberals and conservatives over the Senate’s justice reform bill between a ten or 15 year minimum sentence is actually a debate at all, despite the fact that a ten year sentence would be more than twice as long as 98 percent of all sentences in a country like the Netherlands. (They first abolished capital punishment in the nineteenth century.) Compared to death, taking decades of a prisoner’s life seems reasonable.

Abolishing capital punishment is certainly not the magic solution to the problem of mass incarceration, but the possibility of the most extreme punishment—death itself—is partly why the entire system is so severe. At the very least it does not reduce the hyper-punitive tone of our society and legal system. Other sentences become a compromise—both in the plea-bargaining and sentencing of crime—between what is ethically appropriate and what is legitimate for the state to do. For the same reason, even if we were to grant Clinton’s support for the death penalty to really only apply to the worst of the worst, the continued possibility of the punishment anywhere in the system would continue to anchor the rest of our punishments.

What’s more, Clinton’s belief that there can be a legitimate use of the death penalty suggests an unyielding faith in the carceral state—the same faith, it’s worth noting, that animated its expansion in the 1980s and ’90s as a salve to all the nation’s fears. Nationally, of late, there’s been a mainstreaming of the reformer’s skepticism of that blind faith—but simple opposition to some components of justice policy is not the same as embracing a systemic skepticism. Her support of capital punishment—a matter of life and death—makes one wonder whether Clinton’s reform agenda is aimed to strike at the system at all, or simply to address the ills some policies present.

To at once say, as Clinton has, that we need improvements at every level of the criminal justice system, but then to defend on principle an outcome that is the product of every one of those levels, is hard to accept. Are we to believe her when she questions the stop, the arrest, the pre-trial detention, the inadequate legal defense, the trial, the sentencing, and conditions of confinement—and then also believe her when she defends the culmination of the sequence? Clinton attempts to evade this criticism by stating that the federal system does it better. But as others have already noted, it’s a narrow and erroneous distinction.

By and large, it seems that Clinton’s faith in the system is very much intact, which extends into a moral belief that the government ought to have the right to punish its citizens with death. Faith seems to be the right word, too: Many religious groups oppose capital punishment because one has to endow the state with a sort of divine power to be confident every case will be justly concluded. With that sort of commitment intact, a full-blooded approach to justice reform seems quite unlikely, if not totally incompatible.

This is not an issue of Clinton miscommunicating. (Her recent statement on AIDS and the Reagans is less suspect.) She has been persuasive on other criminal justice issues, particularly in expressing an understanding of how economy, history, and justice are intertwined. Clinton’s responses on capital punishment over the last weeks, however, have dispelled that aura: Her unconvincing, contradictory position undermines her efforts to be an authentic reformer. Ricky Jackson’s question has prompted a reckoning that Clinton’s campaign ought to address: Would she rather be seen as a reformer than actually become one? 

However genuine her position, she’ll need to find a better way to explain it to men like Ricky Jackson, and everyone else who lives under the threat of state-sanctioned death. Until Clinton clarifies or radically changes her position on capital punishment, I’d have to defer to her assessment from last night: She’s becoming “hard to support.”