It’s very important to understand that Donald Trump and Jeff Sessions don’t actually control everything.
That — with nuance added, and with facts to back them up — is the new message of criminal justice liberals who just a year ago thought this would be the moment for major legislation and executive action at the federal level.
Now, with President Trump in the White House and Sessions leading the Justice Department, the focus has moved away from Washington.
“Over 90% of our prisoners are in the state prisons and local jails,” one advocate told me. “Changing state laws and changing practices on the local level is going to be where most of the change is anyhow.”
“Let’s face it, of the 2.2 million people who are incarcerated, only a couple hundred thousand are in the federal system,” another said.
A third said simply, “I think what you do during the Trump administration is that you double down locally.”
The third, Glenn Martin, is the president of JustLeadership USA, a group “dedicated to cutting the US correctional population in half by 2030.”
Martin spent six years in prison more than two decades ago and is now helping to lead the fight to close New York City’s Rikers Island. Closing the jail became a focus in the wake of multiple groundbreaking news stories examining its conditions — and why people are there in the first place — and a concerted, ongoing grassroots opposition. The effort to shutter the jail recently picked up backing from NYC Mayor Bill de Blasio.
Martin, who served on the year-long commission whose report recommended closing the jail, was blunt about the reasons for his local focus — which was the case even before this past November’s election.
“I never had a lot of hope that Congress was the answer to this,” he said in an interview after a student-focused event about closing Rikers that took place at the New School in Manhattan. “In fact, it was a bipartisan coalition that got us here; forgive me if I’m not inspired by a comeback coalition trying to get us out of this mess.”
While Martin is a federal skeptic, ending the mess — America has more people in jails and prisons, both in number and percentage, than any other country on the planet — was a mission that just last year seemed to be going strongly in these and other advocates’ direction on the national stage.
In the last months of his presidency, Obama commuted a steady stream of sentences — mainly focused on those serving long prison sentences for nonviolent drug-related offenses. A bipartisan coalition on Capitol Hill was pressing for significant criminal sentencing reforms — and though Republican leadership was not moving the legislation, a younger generation of lawmakers had expressed openness or even enthusiasm for it. Attorney General Loretta Lynch oversaw significant investigations into numerous police departments and had begun a process of ending the federal government’s reliance on private prisons — a long-sought aim of liberals. And these promised to be merely the opening salvos in a paradigm-shifting mission: Ending mass incarceration and increasing police accountability had become popular causes for the highest level of public officials, celebrities, and intellectuals in Washington.
That momentum came to a halt in January.
Advocates are facing a very different situation now. Trump wasn’t just disinterested in their cause — he actively campaigned against it, promising a crackdown on crime and echoing the kind of sentiments popular in the 1980s and early ’90s when crime rates were significantly higher. (For Trump, “urban centers” — despite his having lived in one for years — remain a bad stereotype of a 1982 inner city.) The naming of Sessions as attorney general was a doubling down of that vision: Sessions likely was the senator whose criminal justice views most closely aligned with Trump’s views.
While some remain hopeful about continuing to build federal momentum for sentencing law changes, the reality is that most federal efforts will be aimed at stopping or minimizing Trump and Sessions’ proposals — not advancing their own goals.
What do you do when your progressive vision loses its spotlight from the White House?
“Is that a very important bully pulpit that we’ll miss? Of course it is, but you have to kind of play with the cards that you’re dealt,” said Jarrett, who pointed to the philanthropic community and mayors and governors. “And if the fact of the matter is that we’re not going to get the support that we want from Washington, then let’s go and work with a coalition of the willing.”
There are, in fact, a handful of areas where advocates see real possibilities: pressing local, even grassroots, efforts to make community change (including through local elections); backing state legislative changes where they’re possible; filing litigation where advocates think it’s needed; and partnering with business and philanthropists to fund programs that otherwise might not happen.
“It’s kind of the challenge and the opportunity of federalism,” Legend said. “We don’t have control over the federal government right now, but there are a lot of states that are willing to experiment and reform and really, honestly, to save money.” He noted that states have “been spending so much on locking people up, they realize it’s not the best way to spend money.”
A little more than 100 days into Trump’s time in office and three months into Sessions’ tenure at the head of the Justice Department, Legend spent 48 hours in New York City laser-focused on making the change that he sees being possible in this new era. It was the kind of hyper-local-but-illustrative trip that, a year ago, might have accompanied a White House tie-in — the musician once was routinely included in White House events during the Obama presidency — or, alternatively, have been meant to put some pressure on the White House.
For Legend, even when talking about Trump, he is keenly aware of where to steer attention toward something actionable, rather than existential. (“We focus on what we can do, work with people that can help us make it happen, and we’re going out there getting small wins that will add up.”)
He spoke on a Close Rikers panel with Martin on May 8 at the New School in Manhattan, joining Martin, New York City Council Speaker Melissa Mark-Viverito, and others to discuss where things stood on their effort, what would happen next, and what those in the audience — mainly younger activists — could do to make it happen. The two days I spent with him were, in fact, meant to deliver the message that there are local efforts still happening — and succeeding.
Mark-Viverito — a liberal politician in a city where Trump got less than 20% of the vote — revels in the idea of fighting Trump: “We can’t give in on that narrative and succumb to it.” But, in practice, she pointed to the value of local efforts saying, “That’s why I believe the Close Rikers campaign is so important, and getting it done quicker [than the 10-year plan proposed currently] is even more important.”
The next morning, from a suite in the Mandarin Oriental hotel overlooking Central Park, Legend spoke on the phone to Louisiana Gov. John Bel Edwards about legislation pending there to reduce the state’s incarceration rate, which is the highest in the nation.
Legend is active, informed, and attentive enough that it’s a running conversation — with his staff and across issues — throughout the morning: He recorded robocalls for Color of Change in support of the Louisiana bill and for the ACLU in support of California legislation aimed at reforming the bail system there. He reviewed an email to be sent out in his name on the Louisiana legislation, making edits on the paper, changing the word “solve” to “improve” in the letter’s assessment of the proposed Louisiana legislation’s effects on mass incarceration. (“I don’t want to oversell it.”)
In talking with the governor, he pointed out that the legislation already had been watered down from what it was when introduced — a change made just before he had gone to Baton Rouge to testify in favor of the bill. “I just know that legislation is a tough process, and it takes a lot of negotiation and you don’t expect to get everything you ask for. I go into it with that expectation, so I can’t be too disappointed when we don’t get everything we want,” he said of the changes, which eliminated relief for violent offenses, adding, “We just keep fighting for it, though.”
The Louisiana bills passed, referred to by The Advocate in Baton Rouge as Edwards’ “biggest victory” of the legislative session. The California bill, meanwhile, has faced difficulties, although advocates remain hopeful for action on bail policy this session.
“I think all of them realize that this stuff isn’t free,” Legend said of states being open to changes. “This comes at a cost, a societal cost and a financial cost, where you’re saying, ‘We’re going to invest in punishment, rather than things that are more likely to build up the community,’ and they realize when they’re making decisions about where to spend your money you’ve got to decide what your priorities are and your values are — and your budget reflects what your values are.”
Legend, it was clear over his time in New York City, shifts seamlessly between worlds — from activists to politicians and lawmakers to wealthy donors, the kinds of people who made up the grassroots-and-corporate coalition refined over the last 10 years in Washington. It’s a code-switching reality that he says is a skill that comes, quite simply, because he’s lived in those different worlds. He went from a “working-class family in a small community that’s forgotten about” to an Ivy League university (University of Pennsylvania, ’99) to his current life as “a wealthy person in America” with a social justice mindset. “I feel like I can speak in multiple languages and to different audiences based on understanding what their point of view is and understanding.”
If the activists know what to do — keep doing what they would do otherwise — the path forward for the liberal business and tech world — grappling with a Trump administration oscillating between chaos inside the White House and potentially wide-ranging policy changes — is less clear.
Part of Legend’s New York tour included the Town & Country Philanthropy summit, a day of events held at Hearst Tower and aimed at the wealthy T&C magazine audience. Legend unveiled a new initiative there: Unlocked Futures, an effort to provide funding to entrepreneurs and small business owners previously incarcerated. If the political environment has changed from last year, the coalition hasn’t totally: He’s begun with a $500,000 donation from Bank of America, and after the T&C event, he headed to Toro restaurant in Chelsea for an intimate dinner at which he pitched foundations on funding the venture.
This is the benefit of Legend’s celebrity, something that’s been aided by the current social media environment. Legend — and his wife, the model Chrissy Teigen — both use Twitter to great effect, and have become more relevant as public figures because of it. His Twitter presence and activism is key to his efforts: His primary outlet for his advocacy is #FREEAMERICA — a hashtag activism-based effort that aims at changing the way people talk about criminal justice in America.
He is aware, though, of the double-edged sword of his celebrity. “It can be powerful and it can be useful, but sometimes I can just get in the way, so I don’t want to be in the way,” he told me. “It’s only useful if we can pass laws and make change and change people’s lives. If we’re not doing that, then there’s no point in doing it.”
Passing laws and making changes locally is key to keeping the criminal justice movement’s momentum alive on a national scale. For decades, politicians in both parties largely ran on harsher sentences and aggressive drug policy; persuading politicians that it can be done differently has become an essential piece of the local dynamic.
The notable focus on state and local work isn’t just something Legend is doing — as Jarrett, who played a key role in federal efforts just a few months ago, acknowledged.
In talking about her post-White House life, Jarrett told me that what she is doing now “is traveling around the country talking to state and local elected officials, as well as the private sector, to talk about what everyone else can do — with this void that we have, quite frankly, in Washington.” (Of course, when she was in the White House, she often was the person taking and responding to criticism about the pace of change from the Obama administration.)
She pointed, specifically, to increasing employment opportunities for people leaving incarceration. “One of the biggest problems with our recidivism is because people don’t have jobs,” she said of work that the Obama White House had backed and that she believes can and should continue even if there isn’t White House support. “Well, that’s something that the private sector can do.”
The changed reality is being seen across the criminal justice advocacy world. The morning of the Close Rikers event, for example, two of the ACLU’s leading criminal justice lawyers at the national headquarters at the southern tip of Manhattan were doing their own local work.
Teaming up with lawyers in Mississippi, they filed a signifiant lawsuit against Madison County — a small county of about 100,000 people — alleging that the sheriff’s department there is engaged in a decades-old practice of unconstitutional policing aimed at making life more difficult for the 40% of the county that is black.
“It’s a small little county in Mississippi. They’ve been doing this shit for decades. And they get away with it, and they’re blatant about it,” Jeff Robinson, the ALCU’s deputy legal director and the head of its Trone Center for Justice and Equality, said a few days after the lawsuit was filed.
“They are shocked right now, I guarantee it, that they got sued. Because it’s like, ‘We always treat these people like this. They’re just these colored people who don’t know any different anyway.’”
Zeke Edwards, the head of the ACLU’s Criminal Law Reform Project, said the lawsuit was one they would have brought regardless of who was in the White House or running the Justice Department. Nonetheless, he acknowledged the difficulties in moving from an administration that was bringing investigations against police departments. “If anything, what this DOJ is going to do with their rhetoric and their funding streams is ramp up the opposite.”
And the message inside the ACLU is clear: Expect more litigation like this, on the local and state level, meant to continue as before except from outside the government.
There are stark limits, however, to what the ACLU or any similar group can do. Unlike the Justice Department, the ACLU can’t just decide to investigate a police department, and, even if the ACLU is taking in untold donations these days, they have concrete financial limits.
“Clearly,” Edwards said, “we cannot fill that void entirely.”
But, as everyone from Legend to Jarrett to the ACLU is quick to tell you, there are any number of local and state level issues deserving of attention. And so these advocates, who felt on the verge of sweeping nationwide change, are trying to stay on the verge, and keep pushing things further, chipping away here and there — even if that wasn’t the path they’d intended to be headed down this summer. ●