Will Barack Obama make our self-destructive criminal justice system the primary focus of his first term in office?

 Not a chance.

 Will he quietly inject criminal justice reform into the political debate?

 Even that is asking too much.

 Barack Obama won the election by refusing to defend liberalism.  He had to support a good war in Afghanistan to pass the commander in chief test, and he had to talk tough on crime (capital punishment) to appear presidential.  By feigning a conservative stance on hot button issues Obama focused a two-year campaign on Iraq and a faltering economy. 

 In short, Obama won by avoiding issues that are losers for progressive politicians.  Unfortunately, the failure of the criminal justice system is one of these issues. 

The Blue team won by a less-than-jaw-dropping majority even though everything broke in its direction: a protracted and unpopular war in Iraq; widespread dissatisfaction with the Bush administration, and an economy in full meltdown.  What if things had worked out better in Iraq and the economy was still showing modest growth?  Could a democratic candidate still have pulled out a victory? 

 Maybe, but only by a razor-thin margin. 

 And this after Obama’s team executed a virtually flawless campaign strategy.

 We are witnessing the death spasms of a conservative revolution inaugurated by Barry Goldwater’s agenda-setting run for the White House in 1964; but that doesn’t justify talk of a new liberal Camelot.  Barack Obama can only succeed by showing the same cagy deference to mainstream American conservatism that secured a path to the White House. 

The criminal justice system impacts black Americans in grossly disproportionate numbers. Obama can’t issue a clarion call for reform without creating the impression that poor black people are his primary constituency.  That way lies political death.

Nonetheless, positive change is coming.  As California’s current budget crisis demonstrates, America can’t afford its bloated prison system any more than it can afford a cold war era standing army. 

 Unlike Bill Clinton, the president-elect won’t be tempted to protect his conservative flank by making the criminal justice system even more unfair and dysfunctional.  When Clinton was first elected, conservatism was resurgent.  Uncanny political acumen and the fortuitous candidacy of Ross Perot allowed the Arkansas governor to prevail.  Only the brilliant strategy of triangulation made the political virtuoso from Arkansas a viable candidate. 

Bill Clinton kept his right wing critics at bay by funneling huge amounts of money to police departments and multijurisdictional narcotics task forces across the nation.  So long as these agencies could demonstrate that they were locking up lots of bad guys, the money kept flowing.  Clinton’s largesse helped to federalize the war on drugs, setting the stage for the overt racial profiling and procedural sloppiness on display in the infamous Tulia drug sting.

Just because the conservative movement is in complete disarray doesn’t mean America is ready for a progressive revolution.  John McCain’s campaign ruthlessly exploited the fears and delusions of a fearful populace.  The good news: these tactics failed; the bad news: John McCain believed he couldn’t win without them.

 There is a legend that bluesman Robert Johnson sold his soul to the devil in exchange for a supernatural way with the guitar.  John McCain sold his soul to the devil by embracing the silly slash-and-burn tactics he once derided . . . and he still can’t play the political guitar worth a lick.

 The president-elect knows that a political over-reach will send him back to the Windy City.  Therefore, he will proceed like a seasoned quarterback; taking only what the defense gives him.

Fortunately, Barack Obama can improve the criminal justice system in small ways without making waves.

The Justice Department was deeply politicized by the Clinton and Bush administrations.  By selecting a fair-minded and independent attorney general, Obama can put an end to sixteen years of institutional turmoil. 

Secondly, by appointing one or two moderate Supreme Court Justices, Obama will arrest the rightward tilt of the judiciary.  James Dobson’s apocalyptic vision of a liberal Supreme Court run riot is delusional; all Obama can do is swing the ideological pendulum back to the center.

It took a staggering degree of across-the-aisle bipartisanship to thoroughly mangle our criminal justice system.  Republicans were outnumbered in both houses at the beginning of Clinton’s first term, but Reagan conservatism remained the ascendant political philosophy.  Bill Clinton couldn’t make any headway with health care reform, so he shifted his focus to welfare reform and mass incarceration.  Democrats eager to flash their conservative credentials jumped on the bandwagon with tough-on-crime Republicans. 

 Barack Obama won’t attempt a reversal of the disastrous legislation that produced mass incarceration.  Still, he understands that American racism is on display in our criminal justice system.  There is a broad consensus on these issues within the academic world Obama has inhabited throughout most of his adult life and the savvy Harvard constitutional scholar certainly got the memo.

 Obama can’t lead the reform charge, but he can quietly encourage an open and frank examination of urban poverty and mass incarceration. 

As a governor and a president George W. Bush used the courts to score political points.  Conservative appeals judges were appointed.  “Tort reform” made it increasingly difficult for trial lawyers to sue bad actors in the corporate world.  Bush un leashed an orgy of prison building in rural Texas.  During his single term as governor, Texas became famous for executing more people than the rest of the free world combined.

Then W. moved to 1600 Pennsylvania Avenue and picked up where Bill Clinton had left off.  Nothing reassures frightened voters more than three-strikes laws, conservative judicial appointments, mandatory minimum sentences and massive prison construction. 

Barack Obama won’t move aggressively to roll back these maladaptive policies, but I would be shocked to see him play the demagogue.

The criminal justice system can be reformed indirectly, through a renewed war on poverty.  Mass incarceration is a maladaptive response to social despair, high levels of unemployment, slave wages, and a flowering underground trade in illegal drugs.  By providing real alternatives to the streets, Obama can slow the steady stream of petty felons flooding our prisons.

A WPA-style works project aimed at long-neglected inner city and rural communities could provide an alternative to the fatalism of the streets.  It will take billions of dollars and a lot of drill sergeant discipline to make hardened bangers pick up a hammer; but it beats the hell out of sending non-violent street kids to the crime schools known as prisons.

 The much-heralded demise of conservatism hasn’t created a mandate for compassion and common sense.  The next president can’t let his rivals frame him as the friend of thugs and drug dealers.  In confronting
America’s criminal justice mess, the Hippocratic Oath should be the watchword for an Obama administration: “First, do no harm.”