Kyle Rittenhouse makes his way back to the stand to testify during his trial at the Kenosha County Courthouse on November 10, 2021 in Kenosha, Wisconsin. He faces counts of felony homicide and felony attempted homicide. (Photo by Sean Krajacic-Pool/Getty Images)

Democrats Are Profoundly Committed to Criminal Justice Reform—For Everyone But Their Enemies

by Glenn Greenwald Nov 11, 2021

The 2020 protest movement that erupted after the police killing of George Floyd in Minneapolis and the shooting of Jacob Blake in Kenosha became one of the most sustained and consequential in modern U.S. history. Though there seems to be a somewhat bizarre effort underway by its advocates to insist that this movement accomplished nothing — why are some claiming that radical cultural and political changes are happening? — it is demonstrably true that, as intended, the movement transformed discourse and policy around multiple issues from race, to policing, to gender identity, to the teaching of history, and fostered an ongoing effort for still-greater changes.

The issues raised by that movement were varied and often shifting: though it was catalyzed by the claim that the U.S. is swamped with racist police brutality as illustrated by the Floyd and Blake cases, it quickly metastasized into other areas far removed from those two cases. White Antifa members clashed with Black protesters over the attempt to steer or broaden the movement away from a narrow focus on racist police brutality into one devoted to generalized insurrectionary anarchy. One of the largest and most densely packed gatherings was a spontaneous march, at the height of the COVID pandemic, in Brooklyn, where ten thousand people paid homage to the importance of “black trans lives,” a cause whose relationship to the Floyd and Blake cases was tenuous at best. Institutional changes regarding gender identity were quickly adopted by the corporations and security state institutions that lent their support, however cynically, to this growing movement.

But one constant focus of this movement has been the need for sweeping criminal justice reform. Americans were introduced to the slogan “Defund the Police,” with some activists making clear they meant that literally, while leading progressives in Congress chanted along. Prison abolition and the evils of “the “carceral state” became mainstream progressive positions. Last May, The New Yorker heralded what it called “The Emerging Movement for Police and Prison Abolition,” noting that while some activists merely want incremental reform, for many these events “confirmed that the institution of policing should be abolished completely. In the past year or two, propositions to defund or abolish the police and prisons have travelled from incarcerated-activist networks and academic conferences and scholarship into mainstream conversations.”

So mainstream did these once-fringe criminal justice reform proposals become that large cities began presenting proposals or referenda to defund the police and replace it with “public safety” alternatives (in most liberal cities where these proposals were presented to residents, including Minneapolis, they were rejected, including with large opposition from Black residents who, polling consistently shows, want the police in their communities). That the U.S. criminal justice system is far too punitive, thus becoming the largest prison state in the world by imposing far longer and harsher prison terms than most western or democratic countries, has been a long-standing view of criminal justice reform advocates (I wrote a 2011 book with that as one of its primary themes). But prior to the 2020 protest movement, that view had largely been confined to the fringes, rarely able to overtake the decades-old harsh law-and-order framework which the GOP began championing in the 1960s with Barry Goldwater and Richard Nixon, joined in the 1990s by Democrats such as Bill Clinton and Joe Biden.

But after this 2020 protest movement, all of that changed. That radical reform was needed to both policing and the criminal justice system — to make the “carceral state” far less punitive and sprawling — became the mainstream view, practically the obligatory view, in Democratic Party politics. One of the most centrist corporatists in the House Democratic Caucus is the former corporate lawyer Rep. Hakeem Jeffries (D-NY), the fourth-ranking member of House Democratic leadership and one of the leading candidates, if not the leading one, to replace Nancy Pelosi when she finally abandons her position as House Democratic leader. Despite his careful centrist image, Jeffries, in mid-2020, began advocating slogans which, just months earlier, had been confined to more radical precincts of academic and leftist activism:

Yet a profound dilemma is visible from the momentum of this movement: a large bulk of liberal politics is driven by precisely the opposite impulses. The most loyal Democratic partisans are frequently venerating prosecutors, advocating for harsh criminal punishments, championing punitive theories of criminal law that have long been rejected by liberal jurists and, above all else, often demanding the longest and harshest punishments in “the carceral state” for a large group of people.

Why are so many Democrats simultaneously chanting radical criminal reform slogans to abolish or greatly reduce the police and the prison state while simultaneously demanding harsh prison terms for so many people under the classic law-and-order ideology they claim to oppose? The answer is clear: Democrats believe that the only real criminals, or at least the worst ones, are those who reject their political ideology and are their political adversaries. And thus, while they work with one hand to usher in radical reforms to the policing and prison state, they work with the other to concoct theories to justify the long-term imprisonment of their political opponents, even when their alleged crimes involve no violence.

This internal contradiction in Democratic politics was vividly illustrated by the fact that — though they will now deny it — the most revered and admired figure over the last five years in liberal politics was Robert Mueller, named in 2001 by George W. Bush to be FBI Director and then in 2017 by Attorney General Jeff Sessions to be Special Counsel investigating Russiagate. Liberals did not even bother hiding their glee at the prospect that Mueller was coming to arrest and imprison as many of their political adversaries as possible. They sung songs in his honor and danced to their fantasies about the next convictions. Every indictment was cheered, every prosecution applauded, every punishment lamented for being insufficiently harsh, as their favorite cable channels were filled to the brim with the very life-long federal prosecutors their ideology ostensibly opposed. Throughout the Trump years, Democratic politics was driven at its core by a bloodlust to imprison Trump, his family, his aides and his supporters for as long and as harshly as possible. Cravings for punishment and prison, at its core, was what drove the arousal of Russiagate.

To accomplish this, they often championed the exact theories of criminal justice which liberal jurists had long warned were abusive and even unconstitutional. Few convictions excited them as much as the one obtained by Mueller against former Trump National Security Advisor Michael Flynn, whose grave crime was lying to the FBI by falsely denying that he had spoken to a Russian official about foreign policy during the transition, weeks before he was to assume his White House job. The most admired liberal judges, such as Ruth Bader Ginsburg and John Paul Stevens, had long argued that lying to the FBI in the way Flynn did should not even be a crime at all, that making it one was a violation of the constitutional right against self-incrimination and bestowed the FBI with the power to turn citizens into criminals through entrapment. But no matter: Flynn was a Trump supporter, and therefore they were thrilled he was prosecuted and outraged he spent no time in prison.

Then there is Julian Assange, who has been effectively detained for a decade and confined to a harsh high-security British prison for two years on charges that he committed “espionage” by publishing authentic documents in 2010 that exposed crimes by the U.S. Government. As someone who has long reported on WikiLeaks and advocated for Assange’s rights, I vividly recall how much support there was for him back then on the liberal-left. Yet virtually all of that support disappeared in 2016, when he committed the real crime that caused Democrats and liberals to hate him and want him in prison: namely, he published true and publicly relevant documents that reflected poorly on Hillary Clinton and the Democratic Party.

As a result of the political impact of Assange’s work, there is little opposition to his prosecution among Democrats and a great deal of glee over his imprisonment, despite the consensus view from press freedom and civil liberties groups that the prosecution of Assange poses the greatest threat to press freedoms in years, and despite its reliance on dangerously broad interpretations of what the wildly authoritarian 1917 Espionage Age encompasses. Here one finds the same dynamic: Democrats believe that the gravest crimes, the only ones that merit harsh prison, are not murder, rape or assault but political and ideological opposition to their leaders, the only real crime which Assange committed in their eyes.

Indeed, the only thing that changed from 2013, when Democrats cheered the Obama DOJ for not indicting Assange, to 2021, when Democrats applaud the Biden DOJ for aggressively prosecuting him is that, in the interim he engaged in journalistic and political activity that harmed Democrats. Thus, they are itching to see him spend years longer if not decades more in the harsh carceral state which, in other circumstances, they pretend to oppose. Like Trump officials, Assange harmed the political interests of Democrats, and thus the harshest state punishments are warranted.

The most protracted thirst for harsh criminal punishment from Democrats has been directed at those who participated in the protest-turned-riot at the Capitol on January 6. Of the more than six hundred people charged with crimes in connection with that riot, only a minority are accused of using violence of any kind. In other words, the majority of 1/6 defendants are accused of non-violent crimes. While few object to prison terms for people who used violence as part of that riot (even though many progressives do object to long prison terms for those who used violence as part of the 2020 protest movement), a large number of non-violent protesters face serious felony charges and lengthy prison terms. That non-violent protesters should not be imprisoned is foundational

to the criminal justice reform movement, yet it is nowhere to be found when it comes to the 1/6 defendants whose real crime, again, is that they have the wrong ideology.

To charge non-violent 1/6 defendants with felony charges has been a serious challenge for federal prosecutors. Since when is non-violent trespassing a felony? To convert it into one, the DOJ has invented a warped theory about what the Sarbanes-Oxley Act of 2002 was intended to criminalize, insisting that the “obstruction of justice” provisions of that law, intended to regulate Wall Street, somehow apply to the January 6 certification vote at the Capitol. To argue this, prosecutors must insist, and are arguing, that the January 6 certification was not a mere ministerial act but an actual evidentiary proceeding on the question of whether the state’s electoral votes were valid (which, ironically, is exactly what Trump and his most extremist lawyers were claiming in order to argue that Vice President Pence had the power to reject the state’s official tallies).

Yet you will not find a single Democrat expressing any concern about the attempts to warp this 2002 Wall Street regulation law beyond recognition in order to justify the lengthy imprisonment of non-violent defendants (meaning defendants accused of no violent acts on 1/6). Indeed, just yesterday, prosecutors demanded more than four years in prison for Jacob Chansley, the so-called Q Shaman, despite the fact that he did not use violence against anyone on that date. But again, because Chansley became some sort of symbol of anti-liberalism or MAGA ideology, you will not find a Democrat expressing concerns about this highly aberrational prison request. The same is true of the extraordinary pre-trial detention of non-violent 1/6 defendants, the unusually harsh conditions in which they are detained, and the fact that an Obama-appointed judge is imposing sentences harsher than those requested by prosecutors: classic excesses of the Prison State that are being cheered rather than denounced because of their utility in punishing ideological enemies.

NBC News, Nov. 10, 2021

Or ask them how they feel about Ashli Babbitt, fatally shot by an armed agent of the state despite being unarmed and not using violence, and you will hear sadism that is virtually bottomless.

But the most unhinged bloodlust is reserved for Kyle Rittenhouse, currently on trial for several murder charges in connection with his fatal shooting of two people and wounding of a third at a BLM protest in Kenosha following the Blake shooting. Even left-liberals who have begun to actually watch the trial rather than rely on wildly distorted media accounts have begun to realize that the picture that was painted of who Rittenhouse is and what he did was completely different than the reality.

“A 17 year old white supremacist domestic terrorist drove across state lines, armed with an AR 15” and “shot and killed 2 people who had assembled to affirm the value, dignity, and worth of Black lives,” is how Rep. Ayanna Pressley put it in a mega-viral tweet on the day following the shootings last year. Yet as people watch the trial, they are slowly realizing they were deceived. To her credit, The Young Turks’ Ana Kasparian, who had railed against Rittenhouse as a white supremacist terrorist and murderer, acknowledged she was wrong about key facts after watching the trial. Even MSNBC’s Chris Hayes, in a monologue attacking Rittenhouse on Wednesday night, was forced to admit, after watching key segments of the trial, that acquittal on the murder charges was likely.

Yet so many progressives care little about what the evidence reveals. Many who clearly have not carefully watched the trial or watched it at all are nonetheless insisting that he is not just guilty, but a racist monster, and demanding the harshest punishment possible. That includes Congressman Jeffries, who just last year was demanding that we “End Mass Incarceration” and “Defund the Prison Industrial Complex,” then on Wednesday took to social media while Rittenhouse was testifying in his own defense, to demand that he not only be found guilty but that the key be thrown away: the long-standing cliché used by those who oppose rehabilitative justice, crave permanent imprisonment, and supported and constructed the Prison Industrial Complex he claims he wants dismantled:

When it comes to the ideological adversaries of Democrats, all calls for criminal justice reform, and defunding of the police and the carceral state, and opposition to aggressive prosecutorial tactics evaporate. In their place arise bloodthirsty demands for harsh prison conditions, long prison terms, aggressive prosecutorial theories, and an utter lack of rehabilitative sentiment, much less consistent support for pro-defendant protections. That is what happens to a movement that comes to view criminality — the worst criminality — as consisting not of violence against innocent people but ideological dissent and political heterodoxy against their party, its leaders, and their political movement.

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