Art of the Possible: Arnold Steinberg on Law Enforcement and Criminal Justice Reform

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By Arnold Steinberg
Better Angels Magazine

Editor’s Note: Every month, Better Angels Magazine publishes a piece by a veteran political operative or analyst on the practical uses of depolarization in American politics. These pieces, the “Art of the Possible” series, aim to demonstrate that the depolarizing, self-aware, sympathetic, and relationship-building skills inculcated by Better Angels do have a place in the world of pragmatic political practitioners, even if they are not always used.

Throughout my political life, I’ve been close to law enforcement.  One of my first campaigns as a young man was in New York to elect Republican Jim Buckley to the U.S. Senate.  Key to his election was the support of police unions in New York City and elsewhere in the state.  More than two decades later, when I created the strategy to elect Republican Dick Riordan the Mayor of Los Angeles, my coalition included the Los Angeles Police Protective League, then a client of mine.  I worked in California with police chiefs and police unions to elect candidates from city hall to the state house.  And I consulted to elect county sheriffs and district attorneys, nonpartisan positions, as well as the state’s attorney general, in which party appears on the ballot.

I respect and admire the incredible dedication and stellar performance of first responders, especially police officers, from whom more and more is expected, and under increasing scrutiny from second-guessers who don’t understand the pressures on a cop of being on the front line against the predators among us.

But over the years, I’ve also become deeply involved in the movement for criminal justice reform.  I don’t see any contradiction between my commitment to an ordered society, within which government fairly enforces the rule of law, and a major overhaul of a failed criminal justice system.  People in law enforcement I respect know the system is dysfunctional.  For example, consider Ed Meese, whose perspective has evolved from his beginnings as a prosecutor. He also served as Attorney General of the United States under his friend, President Ronald Reagan.  If anyone was “tough” on law and order, it was Ed, and he remains “tough”; but Ed in his discussions with me and others is open-minded, deliberative and thoughtful in his nuanced advocacy of criminal justice reform.

My own experiences have shown me that our system does not incentivize true professionalism and the search for truth.  For example, we should also reward the police officer who knows when not to arrest someone, the investigator when he perseveres but finds no credible evidence, and the prosecutor who thoroughly reviews the evidence and finds there is no basis to file charges. Instead, we seem to place a premium on making arrests, and plenty of them, “finding” evidence to make the arrests “stick”; and over-charging the defendant, and “throwing the book” at him or her.  These are not necessarily the correct metrics.

A generation ago, I found myself nearly indicted for a nonexistent crime.   Ambitious prosecutors who targeted the political campaign I created for a U.S. Senate candidate had their own agenda, and it wasn’t “fighting for truth, justice and the American way” as per the classic goal of Superman.  In fact, my client – then a Member of Congress – actually was indicted on a fabricated and specious charge by a Los Angeles County Grand Jury, spoon-fed by an unethical assistant district attorney seeking to make her mark on a high-profile case, even if it were a kind of frame-up.  The indictment was so ridiculous that a courageous judge, himself once an acclaimed prosecutor, literally threw it out of court.  In those days, civil discourse was more likely in politics, and though my client was a conservative Republican, many liberal Democrats, privately and even publicly, rallied to her side.

Four years later, I was building my environmentally-sensitive home, miles away from the coast, when the California Coastal Commission stopped construction, causing me great heartache and massive legal expenses. Part of the phony “evidence” was a perjured statement by a senior staff member who testified about a meeting with me—but I had never met this person.  For too many in government, “the end justifies the means.”  I was forced into a costly settlement for alleged environment violations that I had not committed, but I lacked the resources to fight these zealous bureaucrats. Ironically, I would later serve on the Coastal Commission and witness firsthand the way staff members bullied constituents.

And then, three years later, my friend – Pat Nolan, the leader of Republicans in the California State Assembly, was indicted in a contrived charge involving multiple felonies, created by an ambitious, ethically challenged FBI agent and compliant federal prosecutor.  Pat pleaded guilty to something he did not do, to secure a lesser sentence, rather than face conviction and long sentence on even a single count, based on government-sanctioned perjury. This has become an all too common modus operandi – prosecutorial misconduct and consequent coerced plea bargaining.

Many liberals are surprised that I, a prominent figure in American conservatism, have devoted so much of my time to criminal justice reform.  But my personal experiences, which include firsthand knowledge of abuses in the system against me, and against several others I know, are only part of the story.  If you do not understand the foundations of American conservatism, you may be caught in a stereotyped image or caricature of what conservatives are about, and the key is ordered liberty.

Please note that Alexis de Tocqueville, whose Democracy in America (1840) is a classic of American conservatism, had come here from Europe nearly two centuries ago to study why America had so few people incarcerated.  He discovered a precious sense of community that, if it were ever lost, would lead to a social breakdown; one symptom would be a growing percentage of the populace in jail. Prescient, deTocqueville said the great American experiment would then be imperiled.

My roots are in libertarian conservatism.  Thus, I believe the most basic function of government is to provide what some call “law and order” – or as conservative philosophy would put it, simply, “order” – and just enough order (and no more) to allow liberty to flourish.   We conservatives believe in limited government, because we know that government has the exclusive or sole power to use force or coercion.   But government has gone to an extreme – we have too many laws – too much of what we do is “illegal.”

Laws are not clear, and consequently they are not understood.  My liberal friends properly point out that many poor and uneducated people are unaware they are somehow violating new or rapidly changing laws. Libertarians and conservatives observe that government commissions protect special interests with self-serving occupational licensure laws that make it difficult- even illegal- for people to become, say, a barber or beautician. A recent horror story showed a cop arresting kids for selling lemonade.  More generally, laws and regulations favor those with access to lawyers and accountants.  The legal overreach starts early. How many kids, especially blacks and Latinos, get a criminal record early in their life, when non-judicial intervention could have prevailed? How many people reading this realize that exaggerating their income on a mortgage application is a felony under federal law? The great libertarian economist-philosopher F.A. Hayek in his The Constitution of Liberty said the rule of law requires laws of necessity that are simple and clear, known and certain.  Instead, we find ambiguous and confusing laws that are selectively enforced, and punishments can be uneven, even draconian.

Besides the libertarian conservative, there are fiscal conservatives who see a “prison-industrial” complex that favors contractors who build more prisons, and prison guard unions who want more dues-paying members.  Simply put, mass incarceration is costly, AND it doesn’t work.  Fiscal conservatives understand the need to isolate violent criminals, especially the incorrigible, for long periods, even in some cases for life, and possibly without parole, especially for murder with special circumstances.  But we have too many people in prisons and jails, and it costs the taxpayers too much.  This disturbing process is pervasive; even for minor offenses, the government engages in fiscal tyranny, like using onerous fines for traffic citations to raise revenue.

And what about traditional conservatives who are deeply religious, mainly Christian, often evangelical? Like many traditional Jews, especially orthodox Jews, these Christians believe in Biblical concepts of restorative justice.  This is an effort, to the extent possible, to grant justice to the victims of crime while trying to rehabilitate the perpetrator.  It may even involve putting the victim and the culprit together, as each heals.  This is not simply a matter of morality—it works! Clergy have shown even violent criminals the tragic impact on children of the crime against their parent, as a first step at moving the criminal from a detached anti-social mindset, preliminary to any chance of rehabilitation.

The late Chuck Colson started Prison Fellowship, which has had enormous success in ministering in prisons.  The orthodox Jewish group Aleph also has made inroads.  You may not be a person of faith, but you should consider that religious outreach can cut recidivism, which not only cuts costs but also reduces crime. Today, the number of prison repeaters testifies all too eloquently to our broken criminal justice system.  Rehabilitation to ensure that, when a prisoner is released, he can be a productive member of society, should not be a political issue.

Few Americans realize that conservatives have been in the forefront of leadership in this field.  When Pat Nolan was released from prison, he joined Chuck Colson and then Colson’s Justice Fellowship to bring about change.  And in recent years, Pat – a very conservative Republican – created the “Right on Crime” organization that brought some of the biggest names in the conservative movement to push for criminal justice reform.

What’s more, Pat has collaborated extensively with liberals and Democrats, with whom he disagrees profoundly on most issues. Perhaps Pat’s ecumenical outreach explains why liberals like Van Jones, a strong critic of President Donald Trump, went to the White House to be with President Trump when he signed unprecedented criminal justice reform legislation recently, hopefully an inspiration for successive Federal and state legislation.

Van Jones is no shrinking violet, and is hardly reluctant to take on President Trump. Nonetheless, some of his fellow liberals were probably upset that he had Jared Kushner on his television program and later praised President Trump’s leadership on this issue. Van Jones noted on CNN that his liberal friends were outraged when he praised Trump, and he responded that if Trump “does something right,” he (Jones) would praise him. It’s a sad day when liberals (or conservatives) care more about self-aggrandizement, and taking cheap political shots, than coalescing around serious and sensible public policy.

Many Americans don’t like Donald Trump and voted against him.  But they would be more credible if they followed the Van Jones approach.  He decided to collaborate with Jared Kushner and others in the Trump Administration in a coalition to unite liberals and conservatives, Democrats and Republicans, around legislation.  Without this broad base, we would not have had the subsequent legislative triumph signed into law by President Trump – the First Step Act, a first step in the process of greater criminal justice reforms to come.

It has been said that “politics makes for strange bedfellows.”  But this is as it should be, and as it was more often in the past.  The essence of building a political coalition is finding disparate elements who can find common ground – not on everything, but on something.  When you work with others who disagree with you on most things, you begin to understand them better.  People on both sides realize the merits of other arguments, and their positions may evolve.

Pat Nolan said to me that from afar, he was not a fan of Senator Dick Durbin, the number-two Democrat in the U.S. Senate.  But after Pat worked with Dick (whom I first met on a joint U.S. delegation overseas decades ago) for more than a year on this legislation, Pat’s view of Dick expanded. And Senator Durbin, no admirer of President Donald Trump, saw the benefit of working directly with the president’s son-in-law, Jared Kushner, and with leading Republicans, on this legislation; Senator Durbin praised the president.

When you look at states that have made progress on criminal justice reform, those campaigns were in many cases led by Republican governors. My friend Mitch Daniels, as Governor of Indiana, did so much on this issue.  He did not do it simply by working with his fellow majority Republicans in the State Legislature- he actively involved state Democrats. Governor Daniels understood that their ideas and input were valuable, and also wanted to set a precedent. For the reforms to last, and for more reforms to be made in future years, Daniels needed the Democrats to “take ownership” and to be an integral part of the solutions he pushed forward. (And Mitch’s successor as Governor of Indiana, now-Vice President Mike Pence, reaffirmed Mitch’s commitment to criminal justice reform.)

When my friend Dick Riordan served as Mayor of Los Angeles, he would often quote the old saying: “There’s no limit to what you can accomplish if you don’t care who gets the credit.” Those of us who have volunteered time for criminal justice reform have been patient but persistent.  We have reached out to understand the perspectives of others, to get their input, and to provide a basis of respect and trust.

I can tell you that the legislation signed by President Trump goes farther than some wanted, and doesn’t go far enough for others.  But just as President Richard Nixon, who had enormous credibility as an anti-Communist, uniquely opened up American relations with China, it was President Trump who uniquely, and contrary to the expectations of his opponents, was able to provide this kind of leadership for criminal justice reforms.

When you have a coalition, its component members are empowered.  Reasonable and prudent plans to fix or even overhaul the way our criminal justice system works do not compromise public safety, they enhance it.  President Trump and Republicans are not seen as “soft on crime;” thus their imprimatur gave these reforms a kind of “good housekeeping seal of approval.”  Similarly, when liberal Democrats ended up voting for these reforms, some of their constituents believed, and correctly so, that this legislation is meaningful.

One obstacle to this legislation was that some Democrats in Congress were initially going to vote against it, precisely because they did not want any victory for Donald Trump.  Some of these short-sighted members were African-American Congressmen who actually represented inner city constituencies that would benefit from this legislation in the near term. They’d also benefit immensely if this legislation ultimately became a precursor to incremental and then systemic reforms, at the federal, state and local levels, but for political reasons chose not to support proposals Trump would back. Fortunately, cooler heads prevailed, and after some months of petty maneuvering, the legislation would eventually pass both the Senate and House by a wide margin.

What happened here should not be forgotten. I’m not simply talking about the broad issue of criminal justice reform, which involves so many aspects, only a few of which are addressed by this legislation, and then are only addressed at the federal level. I’m talking about this legislation as an example of what can be done when men and women of both parties stop trying to “win” at the expense of “the other side” and, ultimately, at the expense of  the American people.  Instead, they should find some consensus, even on a marginal basis, and legislate.  They shouldn’t worry if the president of the opposition party gets the credit- if Obama gets the credit or if Trump gets the credit, if it’s a victory for Democrats or Republicans. In the end, it is worth doing if it is a victory for the American people.

Arnold Steinberg is a political strategist. He has consulted for government, foundations, and major corporations. He is an expert in political campaigns, opinion research, and news media and advertising media.  His latest book is:  Whiplash:  A Political Odyssey, From JFK to Donald Trump, available at www.jbooksinc.com.

Photo: Jared Kushner and Van Jones at the White House. By Mark Wilson/Getty Images.

EXTRACTED- https://www.vanityfair.com/news/2018/10/jared-kushner-van-jones-interview

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