The False Hope of “Bipartisan” Criminal Justice Reform

Alice Marie Johnson is free and starring in her first Super Bowl ad. Already, the campaign for her release had made international headlines: a black woman in her sixties, a casualty of America’s drug war who was imprisoned in 1996 for participating in a cocaine distribution operation, a grandmother essentially sentenced to die in jail. Now Johnson will also be known for having her voice and image placed next to President Trump’s own appeal, in the eleventh hour of his impeachment trial, for reelection.

The ad introduces Johnson as someone who was “sentenced to serve life in prison for a nonviolent drug offense,” and then casts Trump as her savior. It closes with soft piano playing as soundtrack to Johnson at a press conference upon her release, saying: “I want to thank President Donald John Trump—hallelujah!” before his voice finally cuts in to “approve this message.” Still, Trump’s ad can’t suppress a swipe: “Politicians talk about criminal justice reform. President Trump got it done.”

And while she is not featured in the ad, reality television mogul Kim Kardashian West, who packaged and presented Johnson’s case for clemency to the former host of The Apprentice, has been similarly credited with getting “it” done. (She was the one to break the news to Johnson in an episode for the fifteenth season of Keeping Up With the Kardashians: “The president just called me!” she explained.) In the Trump version of the story, the chain of tireless advocates also includes, as Kardashian wrote in the introduction to Johnson’s book, Ivanka Trump and Jared Kushner. (The paparazzi caught Kardashian leaving the Ivanka-Kushner household on the same day as her Oval Office visit.)

When Johnson was released in June 2018, she had already become a symbol for the possibilities of the kind of criminal justice reform that could appeal across political difference. Mostly, though, the Trump administration has used Johnson’s case to advertise its unique qualification for the task.

After the ad ran on Sunday, reform advocates were quick to point out Trump’s own cruel record on criminal justice. But some responded, in spite of the president’s self-aggrandizing, in the spirt of a shared purpose, however awkwardly it falls around him.

The Trump Super Bowl ad is perhaps the most high-profile moment for what’s been hailed as “bipartisan criminal justice reform”—a set of policies focused on reducing sentences, pretrial release and supervision, and reentry programs. These reforms tend to elevate cases involving the innocent and wrongfully accused, and increasingly, they focus on those like Johnson’s: nonviolent drug offenses committed by people believed to have since rehabilitated themselves.

“More than an actual means of improving policy,” wrote Kay Whitlock, co-author of the forthcoming book Prison Break: Navigating the Deceptive Terrain of Criminal Justice Reform, in The Public Eye in 2017, “‘bipartisan criminal justice reform’ has become a mantra signifying hope: that people of good will can come together across ideological divides and partisan gridlock to end our country’s overreliance on expensive and unjust systems of incarceration.”

But through that focus on overcoming ideological divides, she argued, such advocates often avoid naming the inequality that animates and is perpetuated by the justice system, addressing “neither the racialized violence of policing nor the structural racism, poverty, and economic violence that produce mass incarceration.” In other words, in another act of rehabilitation, it allows the jailers to cast themselves as reformers.

Beyond that, the place where liberals and conservatives often meet on criminal justice reform is on its costs—to the public, not to the incarcerated. This is austerity, with an “ending mass incarceration” gloss. (How else to explain the Koch investment in the project? Or a Fountainhead creep like Rand Paul?) Such a thin reform agenda, as Whitlock observed, can actually “intensify violence and abandonment suffered by the communities that are already most criminalized.”

You can see this in the tech surveillance markets building in parallel to these campaigns: pretrial release in exchange for being driven into debt by a GPS monitoring company, cash bail abolished only to be replaced by proprietary “risk assessment” algorithms. “Many reformers rightly point out that an ankle bracelet is preferable to a prison cell,” wrote Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in The New York Times in 2018. “Yet I find it difficult to call this progress. As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.”

Trump’s game night ad marshals Alice Marie Johnson in service of that system—of institutionalized racism, disinvestment in poor communities and communities of color, and violence. It also flattens her to caricature, a symbol to be deployed rather than a person who fought for her freedom long before Trump or his family learned about her case. (“I could still choose to live,” Johnson said in an interview published by the American Civil Liberties Union, who represented her and helped publicize her story. “Incarcerated isn’t powerless. I still knew my power was in deciding who I am. ‘Lifer’: That’s a label, but that wasn’t me. I decide who I am. I’m Alice.”)

Trump’s successful co-optation of bipartisan criminal justice reform, then, isn’t so much a sign of its popularity as a reminder of its profound limitations. Reform defined so narrowly may free some people, but it leaves untouched the powerful people who have always found a way to gain from punishment and control.