As I mentioned in my first installment, criminal justice reform can be highly localized by installing and electing prosecutors who approach the position with a less punitive mindset than has been common in recent decades. Going a step further, it is important to note that there is more to state and local criminal justice apparatuses than prosecutors, and these other aspects too should be utilized if American criminal justice reform is to have a future.
Given the prominence of the federal government in national media and the temptation to bring sweeping legislation to impose change in the face of gross injustice, the inclination to look toward Washington for meaningful reform is understandable. Where the federal government maintains and exercises the most power—such as regulation of international and interstate commerce, foreign policy, and immigration enforcement—national lobbying and reform efforts makes a great deal of sense. But the general police power remains with and within the states, and that necessarily limits how much good national reform can bring.
Under an administration that putatively welcomes criminal justice reform, this local limitation appears to be a hindrance to progress. However, as we will soon find ourselves under an administration much more hostile to criminal defendants, the limited role the federal government has in American law enforcement almost seems like a blessing, if a small one.
With the announcement that Senator Jeff Sessions is to be President-elect Trump’s nominee to head the Department of Justice, meaningful federal criminal justice reform becomes even less likely than it seemed just after the election. Ethan Nadelmann of the Drug Policy Alliance called the AG nominee “a Drug War dinosaur” for his anachronistic approach to marijuana and other drugs. Not only will a Sessions-led DOJ be less likely to support major federal reform efforts aimed at drug offenders, he may roll back guidance instituted during the Obama administration to tolerate marijuana businesses that operate within state laws where the drug’s medical or recreational use has been legalized.
To fight back, and keeping in line with Professor Teles’s belief that the political Right can be a force for good in criminal justice reform, state and local areas should resist federal encroachment into their constitutionally protected powers.[i] Federalism has already been instrumental in marijuana legalization and marriage equality, and many on the Right have prided themselves in their dedication to our federalist system. In the coming years under a potentially energetic Sessions Justice Department, we may just see how dedicated to the federalist proposition Republicans really are.
In addition, several municipalities that have previously been designated “sanctuary cities” for refusing to use local resources to proactively enforce federal immigration law have announced their intention to continue their policies under the next administration. Many city halls’ defiance of the incoming administration’s promise to crack down on immigration violations signals intergovernmental challenges ahead. Perhaps these municipal leaders of the political left may rediscover the utility of legal federalism and encourage allies to do the same.
It’s difficult to be very optimistic about more humane criminal justice policies in the next four years. That said, state and local leaders who are committed to fairness and doing what is right for their own communities retain the power and ability to make the changes they deem necessary. Reformers on the Left and Right should not let these opportunities slip away at the local level the way it has at the federal one.
[i] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Constitution of the United States, Amendment Ten.