California voters are being asked to roll back a milestone criminal justice reform this election, in the form of Proposition 36. This initiative would elevate certain misdemeanors, like petty theft and non-violent drug crimes, into felonies. It would be a mistake, which is why I voted against it (I submitted my ballot by mail the day after I received it). Unfortunately, this mistake is a consequence of a larger error, one largely inflicted by progressive advocates, and perpetuated by policymakers and politicians.
Mass Incarceration and Criminal Justice Reform in California
To understand the stakes and the consequences, we need to look back at a bit of recent history. At some point in the last decade or so, many Americans became increasingly aware of the problem of mass incarceration, meaning the enormous number of people incarcerated in American prisons and jails. There are several ways of measuring this dynamic, each with advantages and disadvantages in terms of comprehensibility. There are statistics for the total absolute number of people incarcerated, the percentage of the population currently incarcerated, ever incarcerated, or the rate per 100,000 people. Since the population has been growing and changing at different rates, I find the last measure to be one of the most insightful and revealing.
Currently, the United States has the largest incarcerated population in the world, and ranks 5th among countries for highest rate of incarceration. We incarcerate 531 people for every 100,000. That may not seem like a lot, but in absolute terms it means nearly 1.8 million people, more people than China incarcerates, even though China is over 4 times as large by population.
And what best reveals the growth of mass incarceration is comparing this figure to previous points in time. In 1972, the United States incarcerated about 92 per 100,000 (although another source says 161 per 100,000, for all prisons and jails). Either way, that rate was roughly comparable or within a similar range for much of the previous century or so. But beginning in the early 1970s, that rate crept gradually upward, and then spiked upward in the 1980s and 1990s, and kept growing until it reached a peak somewhere around 2007, at about 767 per 100,000 people. Even as crime rates declined in the 1990s and into this century, rates of incarceration soared.
California, in particular, was one the first states to adopt a “three strikes” law ... It was producing many absurd results, where people would get lifetime sentences for stealing pizzas or shoplifting golf clubs. California’s prison population boomed.
That is an astonishing increase and, at the time, made the United States the largest incarcerator and carceral state in the world, imprisoning more people in absolute and relative terms than the most oppressive regimes overseas, like Russia or Cuba. It was also historically aberrant, as just noted. Either the United States had the largest criminal population in the world (although it hadn’t had so before) or something else was driving this dynamic.
There has since been a virtual mountain of scholarship investigating this phenomenon, which I have neither the time nor space to summarize here. But I will note a few key findings.
Many scholars point to the War on Drugs and several federal crime bills from the 1980s and early 1990s as critical culprits, and these undoubtedly contributed. But careful scholarship has also pinpointed mandatory minimums, longer sentences, and more aggressive prosecutors as key factors as well. By the 1980s, more and more prosecutors ran on “law and order” campaigns, and the electorate rewarded more aggressive, punitive, and zealous candidates by electing them.
One of the key takeaways from this scholarship is that states and their instrumentalities played a critical role in mass incarceration, which is a factor sometimes overlooked by emphasizing the federal War on Drugs. It was states and localities where many of the elements that produced longer sentences were pioneered. Among those innovations was the idea of “three strikes” laws, laws that imposed life sentences for a third conviction.
California, in particular, was one the first states to adopt a “three strikes” law, and did so by ballot in 1994 (Proposition 184), with overwhelming support. Not only that, but California’s version was broader than other states. It was producing many absurd results, where people would get lifetime sentences for stealing pizzas or shoplifting golf clubs. California’s prison population boomed.
California underwent a prison building boom, like other states, but it could not keep up with surging rates of incarceration. Conditions in these facilities were so bad that a federal court ordered the state to reduce its prison population by 40,000 people within two years. And although the U.S. Supreme Court declined to rule that the three strikes law violated the 8th Amendment's prohibition against “cruel and unusual punishment,” it narrowly ruled that the conditions and overcrowding did. Among the terrible conditions noted in Justice Kennedy’s opinion was the fact that in some facilities there were 54 prisoners per toilet.
Although the California Department of Corrections and Rehabilitation was ordered to reduce the prison population, the California voters were also asked to weigh in and help out. In 2012, California voters approved Proposition 36, which required that a “third strike” be a violent or serious crime. Then, in 2014, voters also approved Proposition 47, which reduced certain felonies to misdemeanors. And in 2016, voters approved another reform along similar lines, Proposition 57. These laws, and related efforts, have had a clear effect in reducing levels of incarceration in this state. And they have done so without appearing to cause an increase in crime (although some crimes did increase during the pandemic, those rates remain far below historical peaks).
Now, with the new Proposition 36, voters are being asked to reverse these reforms. Polling suggests that it will pass handily: What’s going on?
Disorder and Crime
Crime rates, alone, do not appear to explain the swing in public opinion on criminal justice reform, at least not in a direct, statistically rational way. Nor has there been a shift in political party affiliation that might explain polling. In fact, the proportion of the California electorate that is registered Democratic has risen since 2020. What has changed, however, is tolerance of perceived public disorder.
The title of the law that Proposition 36 would create is revealing. If adopted, the act would be known as “The Homelessness, Drug Addiction, and Theft Reduction Act.” These things are not the same thing. Or, as the Sesame Street jingle goes, “one of these things is not like the other.”
To begin, let us stipulate that crime and disorder are not the same thing. This is an important distinction.
Not all forms of public disorder are criminal, and not all criminal offenses create disorder or the appearance of it. Some activities, such as vandalism and theft are both crimes and contribute to a sense of public disorder. But peaceful public protests or homelessness, for example, are not natural or common law criminal offenses, but may foster a sense of public disorder.
Although homelessness is not a crime, there have been, however, a proliferation of municipal ordinances that appear to criminalize that circumstance. From 1990 to 2014, nearly 60 California cities enacted hundreds of laws that target or disproportionately affect the homeless. This helps explain the finding that between 2000 and 2012, there was a 7,000% increase in arrests for vagrancy in California.
Although Californians consistently rank homelessness as a top public policy problem, and support efforts to address it, their tolerance for encampments, and other visible signs of disorder is clearly waning. California’s leaders sought, and got legal approval to clear encampments, sensing the public mood. The Governor has also issued an executive order to that effect this past summer.
This waning tolerance has already had devastating consequences on efforts to reverse mass incarceration. As noted, one of the significant causes of mass incarceration is an increased willingness by local prosecutors to seek maximum punishment for arrestees, seeking felonies instead of misdemeanors or misdemeanors in cases where they would have sought no punishment.
Part of the answer to this has been the emergence of so-called “progressive” prosecutors, public officials who take a broader view of the public good, not simply seeking to burnish their credentials with their “tough on crime” bona fides. Three prominent examples of this type of official in California are Chesa Boudin in San Francisco, George Gascón in Los Angeles, and Pamela Price of Alameda County. Although a recall effort for Gascon fell short in 2022, Chesa was ousted last year by a disgruntled San Francisco electorate. And the Alameda County District Attorney Pamela Price faces a tough recall election this cycle. There are similar battles occurring elsewhere in the country.
Although the uptick in crime may have contributed to these headwinds, it is my impression that the crime rates — alone — would probably not have led to Chesa’s recall. Instead, it is crime combined with a sense of public disorder, including homelessness, more publicly visible use of drugs, overdoses, more common aberrant and erratic public behavior by people with mental illness, and other signs of disorder, that have created an environment hostile to criminal justice policy reform and reformers. Surveys show that San Franciscans believe there has been a significant deterioration in the quality of life linked to these problems. Public defecation on sidewalks was so endemic in San Francisco at one point that someone actually created an app to report it. As one San Francisco resident complained, “sometimes it feels like civilization is crumbling.”
A good example of this backlash is in Oregon, where the state recently decided to recriminalize certain drugs after a broad experiment in decriminalization towards trying to end the war on drugs. Such public use, previously, was not technically criminal, but it was contributing to a sense of disorder. In reviewing the situation, it is very difficult to disentangle the particularities of actual criminal offenses from the general sense of disorder that led to this policy rollback. But not impossible.
In a contest between social equity and concerns over “disorder,” many — perhaps most — social justice advocates would not hesitate to prioritize egalitarian interests over a desire for order. That choice flows directly from our values. But it is not the only way of looking at the world or regarding the broadest public interest. In fact, seen from another lens, it can appear quite myopic.
The challenge for criminal justice reformers moving forward is figuring out how to reduce mass incarceration and advance equity, but do so in a way that does not contribute to an appearance of fostering or tolerating excess public disorder. This is likely to be the only way to achieve this, and other related, important policy goals, including ending the misguided War on Drugs. Otherwise, the public seems poised to rollback — let alone oppose — further measures to end mass incarceration and reform the criminal justice system.
The Social Justice Blind Spot
There is, among some social justice advocates, a reflexive disdain and rejection of calls for public order. To some, such demands are nothing but a racist dog whistle, reminiscent of Nixon and Trump’s “law and order,” a term used against civil rights protestors and other racial justice advocacy. To others, they are reminiscent of Martin Luther King Jr’s admonition against the “white moderate who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice.”
These observations are obviously not without merit. Some disorder is a challenge to social hierarchies and prevailing injustices. That is what public protest is. But to conflate this kind of disorder with the kind of disorder that is evident from public drug use on sidewalks, homeless encampments in culverts and parks, mentally ill individuals screaming or accosting strangers near playgrounds and in public transit, or streets filled with trash, litter, and debris, is a mistake, as they are different kinds of disorder. There is a nuanced difference between them.
The problem is that too many social justice advocates have difficulty recognizing the difference, let alone understanding the importance of that difference. There is an understandable reason why.
Progressives (myself included) place equality as a very high value, even a paramount value. Although there are differences in the details and precise degree we seek to pursue this value, broadly we seek greater equality and the reduction of inequality in many realms of life. Because this value is so important to us, we base many of our public policy positions and views on how to best operationalize this value, especially over competing priorities. In a contest between social equity and concerns over “disorder,” many — perhaps most — social justice advocates would not hesitate to prioritize egalitarian interests over a desire for order. That choice flows directly from our values. But it is not the only way of looking at the world or regarding the broadest public interest. In fact, seen from another lens, it can appear quite myopic.
Over a decade ago, the social psychologist Jonathan Haidt (who is best known for his recent work “The Anxious Generation,” arguing that social media has caused depression and anxiety in young people), published a book that explicated critical differences in values between liberals and conservatives, especially their moral foundations. In his telling, conservatives hold in balance a broader constellation of core values, including order, loyalty, and tradition, whereas liberals tend to emphasize harm/care and equality as core values, generally to the exclusion of others (the economist Arnold Kling also made a similar point a decade ago).
These values have trade offs and help explain policy disagreements. Consider the value of liberty in relation to equality. A society set up around perfect liberty would have very little equality. And a society set up around perfect equality would likely have very little personal liberty (because so many life choices would be constrained to maintain perfect equality). The same is true of order. A society of perfect order would have very little liberty. And a society of perfect liberty might have very little order. Clearly these values have to be maintained in some sort of relative balance.
Where we strike the balance becomes key.
If we were better at balancing the things we care about with the things other people care about, we might be able to achieve more of our goals and suffer fewer defeats without having to sacrifice our values and interests in the process.
To be clear, people who are homeless or mentally ill have a right to public space. And, again, homelessness and mental illness, among other things, are not crimes. But, as a person who suffers from schizoaffective disorder recently wrote in regards to an unsettling case arising from the NYC subways, other people also have “a right to move through public spaces without the unsettling intrusions and occasional outbursts of those who appear dangerous and who are not amenable to reason.” People who need mental health support should get it, including housing and treatment. Balancing these interests is not easy, but if we don’t, we risk alienating support for other critical policy goals, such as criminal justice reform and other equality interests.
Haidt’s larger point, vividly demonstrated in his TED talk, is that too many progressives have a difficult time viewing the world through a different moral lens, and therefore tend to dismiss, ignore, or misunderstand the concerns of our fellow citizens. We do that at our peril, however, as the recall of Chesa Boudin and Proposition 36 illustrate.
It is one thing to disagree, and not to share those moral foundations or core values. It is another thing to dismiss them or ignore them, as too many progressives do. If we were better at balancing the things we care about with the things other people care about, we might be able to achieve more of our goals and suffer fewer defeats without having to sacrifice our values and interests in the process.
Between Anarchy and Tyranny
A few summers ago, I decided to read the Federalist Papers (a series of essays mostly written by Alexander Hamilton and James Madison in the late 18th century urging New York voters to ratify the Constitution). It was an illuminating exercise to understand how the framers of the U.S. Constitution understood the problems they were trying to solve. It helped me recognize how many of our more recent Supreme Court decisions have badly misinterpreted or neglected that important document, and how much more progressive the Constitution is than is generally appreciated or prevailing interpretations would indicate.
But one of the things that became clear over the course of reading the essays is how few historical examples of successful democratic republics there were at the time, and how virtually all had either fallen into tyranny or anarchy. The overarching aim, it struck me, was that the founders were trying to design an institutional form that would avoid these two extremes: one that would not slip into tyranny under the heel of a demagogue on the one hand, but not create so many institutional checks and sclerosis that it would fall into a state of anarchy either, as the Articles of Confederation seemed in danger of doing.
This led me to an interesting question: If forced, would I rather live in a state of tyranny or a state of anarchy? How would most people answer that question?
Upon reflection, I realized that there were advantages to each, relative to each other. In a state of anarchy, there is at least a good deal of personal liberty. But there is tremendous uncertainty. It is inherently unstable and unpredictable. In contrast, a state of tyranny — at least in the short run — is tremendously predictable. As long as you follow the rules of the tyrant (and are not a target of the tyrant!), you can probably secure your basic needs (food, power, shelter, etc.). Since many people crave predictability and stability, I came to the conclusion that many would probably prefer tyranny to anarchy.
But that is like having to choose between living in a frigidly cold environment or an unbearably hot one. Ideally, you wouldn’t live under either extreme. But as a thought experiment, it can help us think through certain aspects of the human condition. Especially this one: Although we have many examples of tyranny, and greatly fear it, collectively we may not fully appreciate just how awful a state of anarchy can be, since there aren’t as many readily available and highly visible historical or popular fictional examples compared to the dire situation of tyranny (although there are a few, like The Purge film series).
Unfortunately, there are many places where anarchy prevails today, and they are not appealing. Haiti, which has fallen into anarchy since the assassination of the president a few years ago, is a prime example. About 200 gangs reportedly control the capital city, and ordinary citizens have difficulty finding food, securing medical care, or getting an education.
If forced, would I rather live in a state of tyranny or a state of anarchy? How would most people answer that question?
These situations also show a dynamic relationship between anarchy and tyranny. History and experience counsels that many human beings are willing to sacrifice freedoms and liberties in exchange for stability and order. A tyranny may be unstable in the long-run, because people crave freedom and autonomy. But anarchy is a state that often leads to tyranny, as people’s equally powerful desire for stability and predictability brings the tyrant to power. Many of history’s tyrant’s promised to tame the societal chaos. We can see this dynamic at work in places like the Philippines and El Salvador, where the current president has dramatically curtailed personal freedoms and imposed an indefinite state of emergency in order to tame gangs. His success in having done so has produced tremendous public support (80% or more), but at a great cost to personal liberties and civil rights and likely the end of liberal democracy there.
According to the recent Nobel prize winning economist Daron Acemoglu, liberal democratic institutions exist within a “narrow corridor” between anarchy and authoritarianism, something the framers of the U.S. Constitution understood well. But, to paraphrase David Frum, if liberals won’t tame public disorder, then fascists will gladly step up to the plate.
Conclusion
Equality is a very important value, and one that I’d like to see realized to a degree greater than is currently the case. But, as progressives, we can’t systematically prioritize equality to the exclusion of all other values, or we may end up a society that has less equality than we could otherwise achieve. That is making the perfect the enemy not only of the good, but the possibly much better.
We can’t push equality to the utmost logical extreme without producing derangements that bleed support for greater equality than currently exists. This does not mean sacrificing our values, but it may mean calibrating our policy aims, or counterbalancing them, in order to achieve the greatest possible good.
As progressives, we can’t systematically prioritize equality to the exclusion of all other values, or we may end up a society that has less equality than we could otherwise achieve. That is making the perfect the enemy not only of the good, but the possibly much better.
To be clear, a desire for public order cannot and should not stifle free speech, public protest, or other denunciations of oppression. But if progressive advocates and policymakers had done more to curb public disorder in areas not involving public protests, crime and policing, then we might have been able to sustain or do more to reform the criminal justice system. Advocates and policymakers do not actually have to believe that public disorder is an important or vital public problem; they only need to assure more voters that they are attuned to their concerns about it.
Making symbolic gestures, narrative signals, or even substantive policy choices in this direction does not make such policymakers neoliberal shills or in thrall to conservative claptrap. It is a concession to a reality that an important and significant portion of the electorate cares about these things, even if many progressive advocates do not.
It is not difficult to imagine that many of these recent criminal justice reforms and reformers would have enjoyed more support and been sustained in a different environment, one that was not also plagued by rising rates of homelessness, a pandemic, various mass protests, or an opioid crisis. Had the sense of public disorder not been so bad, I believe Chesa would have won his recall election. Had our political leaders done more to address and manage the perception of public disorder, and had progressive advocates been more sensitive to that problem, we might be able to achieve a great deal more equality than we currently enjoy.
Editor's note: The ideas expressed in this blog are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author."
