Politics breeds strange bedfellows and the Trump presidency is no exception. Few would have predicted in 2009 that Van Jones, who resigned that year as an adviser to the Obama White House after his Marxist-activist past came to light, would less than a decade later become a cheerleader for a “law and order” racist. But Wednesday brought the news that Trump is supporting a bipartisan criminal-justice bill that, if made law, would reduce mandatory-minimum sentences for certain drug felonies and make retroactive the 2010 Fair Sentencing Act, among other mandates. “[The First Step Act] rolls back some of the provisions of the [1994] Clinton crime law that disproportionately harmed [the] African-American community,” the president said, according to NBC News. “Give the man his due,” Jones tweeted on Thursday, “[Trump] is on his way to becoming the uniter-in-chief on an issue that has divided America for generations.”
Trump is becoming no such thing. Current-day polarization between Democrats and Republicans leads some to fetishize bipartisan cooperation. But to frame criminal-justice legislation in these terms is to misrepresent both the scope of the disaster and how it got so bad in the first place. The mid-century explosion of America’s incarcerated population was fueled by both parties. More than two and a quarter-million people are now locked up in our prisons and jails, at a rate of 716 for every 100,000 residents — higher than any other country. Forty percent of these prisoners are black. Democrats and Republicans may diverge on several issues, but their zeal for shuffling black people in and out of cages has been mutual more often than it has not.
As a consequence, the bill — an earlier version of which passed in the House in May — less resolves some generation-spanning conflict than redirects energies that have often been in sync. History shows how it has played out. Democratic president Lyndon B. Johnson laid the groundwork for the coming incarceration boom in the 1960s, when he married his War on Poverty to a War on Crime. Seeking to address racial inequalities that stemmed from centuries of chattel slavery and decades more of segregation and terrorism, Johnson commissioned an expansive report on how to promote order in black communities. Empowering law enforcement and integrating it with existing government agencies was central to the report’s conclusions. “[The Crime Commission] recommended the creation of criminal justice planning agencies at all levels of government,” writes historian and Harvard professor Elizabeth Hinton. “It also encouraged the federal government to invest in the professionalization and modernization of police departments, both by improving the weaponry available to law enforcement and by standardizing crime-reporting methods.”
The result was a national overhaul of American social services institutions, pairing aid efforts with increasingly aggressive law enforcement in what the administration saw as a multipronged assault. The results proved devastating for black people. “The process of implementing this strategy from the late 1960s onward eventually criminalized generations of low-income black Americans,” Hinton writes. Crucially, support for Johnson’s initiative was also bipartisan, as the report helped “the administration build a critical mass of support among political and economic elites across the ideological spectrum.”
When Johnson declined to pursue reelection in 1968, Republican Richard Nixon picked up the mantle. Running on promises to restore “law and order” to a politically fractured citizenry, Nixon announced what became known as the War on Drugs in 1971. This initiative accelerated the criminalization of black communities, in part by creating more pretenses for law enforcement agencies to inundate them. Policies like mandatory sentencing and no-knock warrants took hold as federal drug control agencies expanded. Incarceration rates climbed as crime gripped the public imagination and local police and officials rose to the occasion.
Presidents Gerald Ford, a Republican, and Jimmy Carter, a Democrat, mostly continued the status quo, with the brief exception of Carter’s support for marijuana decriminalization. By the time Republican president Ronald Reagan took power, the machinery was in place for even more rapid growth. Several patterns coalesced in the 1980s that drove the continued rise of incarceration rates into the 2010s — namely that more people were sent to prison and stayed there longer, despite arrest rates remaining relatively stable. In 1986, Congress passed the Anti-Drug Abuse Act, which created new mandatory-minimum sentencing requirements.
Reagan’s vice-president, George H.W. Bush, transformed the debate around crime and punishment into a more explicitly partisan pursuit during the 1988 presidential election. He infamously used the case of Willie Horton, a black man in prison for murder in Massachusetts who committed rape and armed robbery while on a furlough program in 1986 supported by then-Governor Michael Dukakis, to paint Dukakis as soft on crime. Bush won the presidency, but lost reelection four years later to Bill Clinton — the Democrat perhaps most associated with modern tough-on-crime policies. The Violent Crime Control and Law Enforcement Act that Clinton signed into law in 1994 expanded the reach of the federal death penalty, eliminated higher-education grants for incarcerated people, and provided funding to build new prisons, to name three of its provisions.
All these efforts gained support by using black people as symbols of fear and criminality, with the parties often one-upping each other to prove who could be the most punitive. John Ehrlichman, a Nixon aide, openly admitted the Drug War was a pretense to criminalize and vilify black communities. Reagan used public fear around crack cocaine’s ravages to implement a bill that disproportionately punished them. Bush used Willie Horton. Clinton held a campaign event and photo op at the base of Georgia’s Stone Mountain, a Confederate monument, in 1992, flanked by black inmates from a local prison — an unambiguous signal that he was as unafraid of cracking down on black criminals as his GOP predecessors.
Despite the long bipartisan consensus that led to the rise of mass incarceration, coverage of the First Step Act has framed it as a rare meeting of the minds on criminal justice. A New York Times analysis bears the headline, “Republicans and Democrats Cannot Agree on Absolutely Anything. Except This.” In his tweet congratulating those “on both sides” who worked on the bill, Van Jones quotes Jessica Sloan, national director of #cut50, the criminal-justice reform organization he co-founded, expressing how “honored” she was, “even as a Democrat,” to stand beside Trump when he announced his support. The president himself sold the bill as an interparty olive branch. “Today’s announcement shows that true bipartisanship is possible,” he said. “This is a big breakthrough for a lot of people … They’ve been talking about this for many, many years.”
But bipartisanship around criminal-justice legislation was never really the problem. It was the direction that bipartisanship took. Even now, Trump’s rhetoric echoes the one-upmanship that’s defined the discussion for so long, framing his efforts as a rebuke to a Democratic predecessor in Bill Clinton. The First Step Act could very well impact people’s lives for the better, if it becomes law — an uncertain prospect, as Senate Majority Leader Mitch McConnell explores whether it has enough votes to pass. But it is nothing if not incremental, and should not be mistaken for a genuine offensive against mass incarceration’s root causes. Those have remained the same regardless of generation, including an enduring national hunger to punish and exert control over the vulnerable, especially black people. And they will not change until we understand that the problem has united our political efforts more often that the solutions.
