‘Tough on crime’ used to win votes. Now it’s all about criminal justice reform

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*This oped was cowritten by Jon Haggerty.

Black and white photos of the two presidential candidates briefly flash over a plain blue screen. A monotone, male narrator introduces the script:

“Bush and Dukakis on crime. Bush supports the death penalty for first-degree murderers. Dukakis not only opposes the death penalty; he allowed first-degree murderers to have weekend passes from prison.”

A dazed and unkempt black man’s mugshot appears onscreen.

“One was Willie Horton who murdered a boy in a robbery, stabbing him 19 times. Despite a life sentence, Horton received 10 weekend passes from prison. Horton fled, kidnapped a young couple, stabbing the man and repeatedly raping his girlfriend. Weekend prison passes. Dukakis on crime.”

This short and direct advertisement, paid for by a political action committee supporting then-Vice President George H.W. Bush, only ran for a month leading up to the 1988 election. But Bush unceasingly slammed his Democratic opponent, Massachusetts Gov. Michael Dukakis, for the Horton incident on the campaign trail. He wanted voters to see Horton’s face whenever the name Dukakis was mentioned.

The advertisement was more or less accurate in the facts it presented, but conveniently omitted an important one. The furlough program that allowed Horton to skip town and commit his crimes was common around the United States. Indeed, all 50 states and the federal prison system (under President Ronald Reagan, no less) had some version of a furlough program, not only to provide incentives for good behavior behind bars, but also as a mechanism for inmates to readjust to society before they returned to the community. When a California inmate committed a murder while on furlough, then-Gov. Reagan still defended the program by claiming California was “leading the nation in rehabilitation.”

“Obviously you can’t be perfect,” he continued.

But those facts couldn’t constrain the incredible emotional reaction the Horton smear campaign elicited from voters, thanks to the ad’s well-calculated timing. Crime was on the rise in the 1980s and Americans’ ubiquitous fear spurred a bipartisan consensus around tough-on-crime policies. The ad worked. States began to reign in parole, work release, commutation, conjugal visit and furlough programs, or cut them altogether. More prisons sprang up across the country and sentences for all types of offenders skyrocketed. And, of course, Bush beat Dukakis by a landslide.

Fast forward nearly three decades to the recent Virginia gubernatorial election, in which Republican Ed Gillespie ran a similar attack ad aimed at his Democratic opponent, Lt. Gov. Ralph Northam. With more pictures and a marginally more interesting graphics scheme, the ad targeted outgoing Gov. Terry McAuliffe’s program to restore convicted felons’ right to vote:

“Last year, Terry McAuliffe and Ralph Northam instituted the automatic restoration of rights for violent felons and sex offenders, making it easier for them to obtain firearms and allowing them to serve on juries. One of these felons, John Bowen, had his rights restored two months after being found with one of the largest child-pornography collections in Virginia’s history.”

Similar to its predecessor, this ad obscures some of the facts. McAuliffe restored the rights Bowen lost from a previous conviction. He had been arrested for, but not yet convicted of, the new offenses when the restoration happened. But the message echoes the same warning as the Dukakis ad: this candidate will side with criminals over your family.

However, the result, this time, was different. Northam walloped Gillespie by 9 points, 3.6 points ahead of Hillary Clinton’s totals in Virginia in 2016 and 6.3 points more than McAuliffe won the state in 2013. The scaremongering strategy may have been more successful in the bygone era of Bush and Dukakis, when crime was a hot-button issue—crime topped the list of voters’ domestic priorities as recently as 2000—but those priorities have shifted.

During the 2014 midterm election, crime didn’t even make the list of top 13 issues in a Gallup poll.The Charles Koch Institute’s polling of 2016 voters found significant support across the ideological spectrum for criminal justice reform. Notably, this support comes from Trump voters, as well.

The support for reform has offered political cover for sympathetic legislators. Jail reform movements, which seek to reduce the number of low-level offenders sitting in jail, have gained momentum across the county.

Both Kentucky and New Jersey replaced much of their cash-bail systems with algorithmic risk assessments. New Jersey judges now use the Arnold Foundation’s Public Safety Assessment (PSA) software, which uses individualized data to assess a defendant’s pretrial risk and recommend whether they should be released, detained, or released with surveillance. Since shifting to the new system, New Jersey’s jail population has fallen by 15.8 percent, while violent crime in the state fell by 12.4 percent. Kentucky has reaped an estimated $30 million in taxpayer savings while maintaining nationally low failure-to-appear rates.

Of course, it could simply be the case that the election was a referendum on Trump, and that Gillespie’s crime rhetoric in and of itself did not turn the tides for Northam. But Virginia nonetheless represents an interesting data point for the conclusion that painting your opponent as soft on crime is no longer politically helpful.

More importantly, in the current electoral landscape, politicians who want to slim incarcerated populations to better protect communities and save taxpayer dollars have much to gain, and little to lose.

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