We are facing unprecedented challenges to America’s long fragile experiment in democracy. There are countless risks we have to manage. One central one is our underestimation of the role of the criminal legal system in securing a multiracial democracy.

All too often, criminal justice reform is considered ancillary to other more central dimensions of a functioning civil society: the protection of voting rights and freedom of speech, adherence to the constitution, and the assurance of meeting people’s basic material needs, among others. The sector is often regarded as morally desirable but not quite necessary to democracy, and as a body of work that implicates only a small segment of our society. This orientation vastly misunderstands the scope and role of the criminal legal system in a democracy. Below we offer an invitation to reorient toward this work and its impacts on our shared future.

For people working in the criminal justice reform field and movement, this time calls us to double down on our work and to be increasingly intersectional in how we do it—to recognize the convergent interests of our constituents with others most directly targeted by the worst of what is happening nationally. We have to mobilize the power we have built, act on our expertise, share with other aligned movements, recognize our key position in the larger struggle and play it well.

For people working in other movements for social justice, including work for immigrants, trans folks, people accessing reproductive healthcare, and far more, we invite you to coordinate with those of us working in the criminal legal arena, to strategize with us, educate us, build shared analysis and power, hold us accountable to real partnership, and draw on what we have to offer in your struggles to defend your people, their rights, and their wellbeing.

For those in philanthropy, we implore you stand steady and strong alongside our movements and the others whose success is interdependent with ours. We outline here some ways we understand our contribution to this moment and to the larger work of creating a sustainable multiracial democracy. We invite you to not underestimate us in this time—neither our place in the work ahead nor our capacity to rise to it. If our collective underestimation of the criminal justice sector results in our reallocating time, labor, and resources away from this work, the losses we will suffer will be far reaching.

All is not lost, and much remains to win. As we face down an onslaught of repressive tactics from the federal government, it is important to remember that while there are federal battles that belong to all of us, most of the criminal justice system operates at the local and state levels. This not only means that wins there are still possible even as we face losses nationally, but also that these local and state contexts will prove to be key sites of resistance to many of the worst policies rolling out nationally, sites of respite to those most impacted, and sites of promise as we build the world everyone has always deserved.

Where Movements End Up When They Lose

The criminal legal system is where other movements end up when they lose. Repressive governments deploy criminalization to control people and culture, and ours is actively criminalizing immigration, reproductive healthcare, the expression of transgender and queer identities, education regarding race and history, protest and voting rights, among others. When such laws take effect, the behaviors do not evaporate, and it is people who are criminalized—people still immigrate, people still seek abortion, people are still trans and queer and visibly so, teachers still educate their students, people still protest and exercise their rights to vote. Rather, what happens is that those things become punishable—and punishable by the very same police forces, prosecutors, judges, and parole boards, governed by the same bail statutes and sentencing guidelines, sent to the same jails and prisons, and brought before the same parole and probation supervision systems known all too well to those working on criminal justice reform. Prohibition never eradicates behavior—it subjects it to punishment, and whether and how the criminal legal system punishes people for the behaviors that are being targeted will determine whether we are facing a concentrated period of escalated hardship or a regressive cultural transformation that will harm people, communities, and our democracy for generations to come.

People and organizations in the criminal legal reform field and movement have built long-standing analysis, strategy, coalitions, and bases of support that are poised to push back against many of the most harmful expressions of authoritarianism that will play out in the sector. These movement actors will have to be nimble, intersectional, interdisciplinary, and resourced, but if they are, they will play an indispensable role in the defense of people and institutions that will be under attack.

Fear and Repression 

An integral element of the rise of extreme repressive regimes is their narrative around safety—such regimes have to control the story of who is dangerous, who is endangered, and who should do the protecting and how.  The stories being deployed by the Trump administration and its allies build on long-standing narratives in our nation.  These narratives in the United States have long been counterfactual, fear-mongering, and racist.  They weaponize the pervasive anti-Blackness in our culture to support increases in criminalization, policing, and incarceration and include not only Black people but other marginalized groups amongst their targets, including most notably in this moment, immigrant communities. 

If we do not contend for this narrative control, we stand to lose our chances of regaining power amongst the electorate in the foreseeable future.  People will vote based on fear, and it will cement the policies and leaders that will implement the harshest punishments not just for violent crime, but for the fast growing range of criminalized behaviors. 

The narrative battle is winnable.  We will not win by denying people’s fears, by relying on data, by focusing exclusively on the harms of incarceration, or by seeking the one perfect message that will turn the masses.  Rather, we have to validate people’s experiences, uplift the voices of crime survivors who want real solutions, stand on the side of accountability (as distinct from punishment), and offer an affirmative vision of a world where safety is delivered by common sense community-driven practices that are sufficiently resourced to meet people’s needs in acute moments of crisis and over the long term.   

There is a strong emergent body of work doing just that.  Some of this work engages media in shifting their representations of crime and violence to uplift real solutions, tell accurate stories situated in larger structural contexts, speak to the pragmatic need for and possibility of real safety, and uplift the full range of crime survivors’ perspectives.  Some supports elected officials in advocating for new platforms on public safety that replace the tough on crime rhetoric with pragmatic calls for safety and justice as concurrent realities.  Some uses digital organizing strategies to pressure corporations and other institutions to change their practices and commitments.  And some works from the ground up to engage impacted communities in near term and lasting narrative change work. To have adequate impact in moving culture in this time, that narrative and cultural strategy work will need to be scaled through partnerships and brought not only to the top-down messengers (media, electeds, etc.), but deeply integrated into grassroots organizing work carried out to build power to change people’s material conditions. 

The Vulnerability of Local Governance

There is an ongoing struggle over the autonomy of local governance that has been increasingly contested in the criminal justice arena, and we should expect such tactics to escalate in the months and years ahead.  Across the country, predominantly white, conservative legislators are utilizing strategies reminiscent of the Jim Crow era to undermine the self-governance of majority Black cities.1 Some of the most significant attempts to do so involve more reform-minded prosecutors and judges elected by their constituents with the express mandate to reduce their jurisdictions’ reliance on incarceration, end cash bail, and hold police accountable.  These elected officials have faced a tremendous backlash from authoritarian governors and in state legislatures as part of a coordinated effort to test strategies to usurp local power. Over the past several years, more than 20 states have tried to pass bills that would strip discretion from democratically elected prosecutors and judges.   

Taken together, the changes carried out by these governors and state legislatures would put white, conservative state officials in control of much of the criminal justice system across a significant swath of communities populated by Black and brown people.  What is more, these efforts are not carried out with only the criminal legal system in mind.  Rather, the criminal legal system is a testing ground for the feasibility and constitutionality of strategies that, unchallenged, will certainly expand to include the revocation of queer and trans rights, limitations on teachings about race and racism, abortion, protest and voting, and more. 

Our movements have begun coordinating strategies to oppose these incursions into local democratic governance.  While the real stakes are about democracy, the fights are carried out as fights about crime, punishment, lenience, and safety.  If we do not take on and win those fights while simultaneously engaging the struggle as the governance battle it really is, we will not only lose footing in the sector but will set immensely dangerous precedent for sweeping losses for aligned movements everywhere. 

Offering an Affirmative Vision for Winning Real Safety 

We will not win a popular majority in this country unless we can deliver on safety.  Moving people toward a public safety approach consistent with a multiracial democracy will require putting forward a palpable, pragmatic, near-term affirmative vision for how things can be.  That means people have to both feel and be safer.   

People will need to see and feel approaches to violence and other challenges that make sense to them and deliver the results they have long sought through other means.  This means expanding community violence interruption programs, restorative and transformative justice approaches to harm, truly community-based diversion programs, crisis response teams that function independently from law enforcement, harm reduction approaches to substance use, and more.  These approaches are not only more just, they are more effective.  These strategies have grown substantially in the past decade, accrued compelling evidence of their efficacy, and built strong support in a wide range of communities, including many that otherwise support tough on crime approaches.  In these coming years, it will be all the more urgent that we secure the power to implement these strategies so that people can experience material differences in their safety as a result of non-carceral responses to harm.  The culture war here will be won not mostly at the level of theory, but at the level of people’s day to day experience of their and their loved ones’ personal safety. 

Similarly, true safety is not just the absence of violence but the presence of needed supports—relational, material, communal, and structural.  The sweeping cuts to federal funding that supports key infrastructure, services, and resources, compounded by the trickle down impact on state and local budgets, will, if unchecked, have devastating impacts on public safety.  Housing, health care (including Medicaid), education, and other basic social structures are core components of building safe communities.  The work to secure safety therefore includes defending these resources and holding those who cut them accountable to the outcomes. 

We also have to approach safety as inclusive of but broader than bringing down crime rates. A significant portion of people living in cities and neighborhoods where crime has declined substantially still report feeling less safe.  The actual instances of crime, particularly of violence, matter, but they are not the only contributors to people’s overall views.  For another, safety also has to do with feelings of agency and connection—people want to feel they can protect themselves and will be protected, that they can shape their own lives, that they know the people around them and that those people care for them.  Our organizing around safety therefore has to embed efforts to secure solutions other than punishment in a larger process of connecting neighbors to one another and to a shared commitment to people and place.  To the degree our organizing can foster deeper and more lasting experiences of belonging, it will form a powerful basis for more collective action and alignment on a wide range of issues. 

Crucially, we cannot spend the majority of our energy critiquing things as they are—we have to make broadly accessible a vision of things as they can be. This is especially important in the larger political context of this moment, where these fights related to criminalization and incarceration are intwined with larger fights for immigrants, LGBTQIA+ people, and democracy itself.  There are hundreds of defensive battles we will have to take on, but no team wins a game playing only defense, and very few people are moved to align themselves with groups they perceive as losing.  To win the popular majority necessary to secure a multiracial democracy, we have to build: the institutions we want, the solutions we need, and the power to secure them.  We have to offer an irresistible world worth fighting for and that has to include contending with the criminal legal system’s place in our society.

Moving Forward

Many of the battles ahead remain winnable, and we will do a grave generational disservice to this democracy and the people if we concede in advance.  The political margins are narrow and precarious, and our capacity for building movement is expansive and, if we organize well, expanding.  If our movements are intersectional, our strategies coordinated and precise, and our partners in philanthropy steadfast, we will have a real chance at minimizing the immediate harm to the people who will suffer the greatest losses in this time and to building the basis for a multiracial democracy that can withstand the pressures of division and threatened collapse. 

Danielle Sered Executive Director