I’m up on the tightwire
One side’s ice and one is fire
It’s a circus game
With you and me

I’m up on the tightrope
One side’s hate and one is hope
But the top hat on my head
Is all you see

-Leon Russell

This thoughtful article in Politico portrays Barack Obama as a criminal justice tightrope walker.  He knows the system is in desperate need of reform.  He isn’t comfortable with Bill Clinton’s shortpsighted (and self-serving) policy of  out-toughing the Republicans on crime.  But as America’s first black president, Obama is fighting the not-so-subtle racism lurking just beneath the surface of the crime debate. 

Doug Berman, the Ohio State University law professor who writes the highly regarded Sentencing Law and Policy Blog was interviewed for the Politico piece and he tackles the big issue head on.  “Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to.  Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate.  This really is, inevitably, low-priority, high-risk kind of stuff.  Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area.”

What’s a small-p progressive president to do?  Like Johnny Cash, he walks the line–only the line in question is suspended 60 feet above the sawdust in Barnum and Bailey’s center ring. 

Obama signed crack-powder sentencing reform legislation, but the bill merely reduced a 100-1 disparity to 18-1, so the unfairness in the guidelines remains (minority defendants are more likely to be sentenced for crack offenses; white defendants for powder).  But the president has thus far refused to make the changes retroactive and, when he signed the legislation, he  refused to allow film crews in to the room so the evening news people would be deprived of potentially damning footage.   

The president is also backing Jim Webb’s federal commission on sentencing, but to date the White House hasn’t issued a public statement on the subject.  Like his predecessors, President Obama has hardly touched his commutation pen.  Commuting a sentence in a particularly egregious case might create a sense of inner peace, but it can come back to bite at election time and the politically savvy Obama knows it.

Josh Gerstein’s Politico lays out several reasons why the political atmosphere is amenable to mild reforms. 

• Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its decline as a hot-button political issue.
• Crime rates are at some of the lowest levels in a generation.
• Stories of offenders who got decades behind bars for minor roles in drug operations have generated some public sympathy.
• States and the federal government are grappling with huge budget woes, raising doubts about policies that are causing prison populations – and costs – to go up.
• Republicans now accuse Democrats of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail any more.

 Unfortunately, as professor Berman suggests, there has been no major shift in the tough-on-crime cultural consensus that has controlled electoral politics for forty years.  Barack Obama could throw caution to the winds and use his bully pulpit to change the national mood, but that’s not how he rolls.

Besides, the devil in the mass incarceration details operates at the state level.  Federal laws are punitive, to be sure; but state systems account for the lion’s share of prison inmates and presidents have little say in that world.

As much as I hate to say it,  President Obama is wise to exercise caution in the criminal justice reform arena.  If he tilts too far to the right on crime he will lose credibility with his base.  If he tilts too far to the left, his fall from grace will be swift and spectacular.  A Democratic president can’t change the cultural consensus that drives public policy; but we can.