Will the Bipartisan Consensus on Criminal Justice Reform Survive?

This post is part of the 2017 Transition series, in which iustitia explores the perspectives, statements, and proposed policies of the incoming U.S. administration and how it may affect the populations that iustitia works with. Read other posts in this series here.

With the Republican control of the executive branch, Congress, and soon, the Supreme Court, as well as a majority of governorships and state houses, Republican leaders will have an unprecedented opportunity to set the political agenda and the path that the country will take for the foreseeable future.

Prior to the 2016 election, Republicans and Democrats were coming to an unprecedented consensus on the need for criminal justice reform. Both sides of the isle recognized that modern criminal justice policies that had made the United States the world’s leader in incarceration were not working. Instead, the individuals caught up in the system were disproportionately people of color and many had severe mental illness or disabilities. How the new administration will approach the issue of criminal justice reform remains a question. However, if the consensus on major reforms remains bipartisan, legislation may have a veto-proof majority regardless of the new administration’s stance.

The Death Penalty

One issue congressional criminal justice reform is unlikely to address is the death penalty. First, it remains popular among members of Congress and is still legal in the federal and military justice systems. Thirty-one states also retain the death penalty. Although the Supreme Court has previously ruled that individuals with intellectual disabilities cannot be put to death as it violates the Eighth Amendment, states’ adherence to that rule remains in question.

Rather than upholding and reinforcing this standard, or repealing the death penalty, a Trump appointee to the Supreme Court is likely to guarantee capital punishment remains U.S. law for many years to come. More individuals with intellectual disability would likely be executed in flagrant violation of Supreme Court precedent.

Solitary Confinement

The Supreme Court’s restrictions on the death penalty for individuals with intellectual disabilities are not the only thing called into question. The widespread use of solitary confinement, in both federal and state prisons, was facing significant legal restrictions. Seemingly, the United States was finally moving towards the international consensus against the use of solitary confinement. However, without Democratic control of the Senate or the executive, Congress is unlikely to ban the practice, which is used rampantly in states to punish perceived misbehavior, including for individuals with autism and mental illness. Fortunately for opponents of solitary confinement, the Supreme Court’s “swing” vote, Justice Anthony Kennedy, denounced the practice, citing the insidious mental health effects. Despite the incoming President’s ability to nominate a Supreme Court justice to replace the late Antonin Scalia, assuming the four justices on the liberal wing of the court maintain their abhorrence for the practice, Justice Kennedy’s opposition could provide a key vote.