Alaska’s SB 91: The Anatomy of Justice Reform Hit Job
January 30, 2017 (Fault Lines) – People think that passing a bill is the hard part of justice reform, but the real challenge is often defending these gains. Many reforms flounder in the face of a particularly horrific crime or a spike in violence, and the building pressure on Alaska’s justice reform bill, SB 91, shows exactly how opponents of justice reform go about dismantling a law.
SB 91 was passed to reduce recidivism and save money through a remarkably ambitious package of reforms. Among the highlights are reducing most cases of drug possession from a felony to a misdemeanor, reducing sentences for a wide array of felonies, and eliminating the use of incarceration for such world-shattering threats to society as shoplifting something less than $250.
It also displays a level of mercy not commonly found in the justice system by removing food stamp restrictions for people convicted of drug offenses, one of the many side effects of conviction that, while legally classified as “totally not a punishment,” really kind of feels like one.
SB 91 had its detractors, but to the credit of bill sponsors, John Coghill and Johnny Ellis, it survived and passed. However, little more than a year later, SB 91 faces increasing pressure, and the strategy for bringing it down follows a familiar blueprint.
Step one, you need a theory. A good counter-reform movement needs a good theory about why this bill is not merely bad, but likely to bring about the end of the world and all of civilization. Thankfully, there’s an old standby that rarely fails to do the job: “the emboldened offender.” Criminals you see, despite having far less proficiency in reading and data analysis than the general population, are constantly monitoring our legislatures for even the slightest signs of weakness. At the first sign of it, they strike!
The beauty of the emboldened offender theory is that it works for anything. Legally protest police abuse? You just emboldened offenders into committing Chicago’s latest homicide spike. Focus on probation and diversion for low level offenses in Wisconsin? Sure, just go on emboldening violent criminals.
Notice how selectively brilliant these emboldened offenders are. In Chicago, they respond to protests, not say, a CPD homicide clearance rate so abysmally low that the answer to “how to get away with murder” is basically “commit it in Chicago.” In Wisconsin, they’re emboldened by proxy: probation and diversion programs are generally for drug offenses not violence, but people are emboldened to commit violence anyway.
So when SB 91’s opponents needed a theory to bring down the bill, they went for the classic:
State law and public safety officials citing “emboldened offenders” want the Criminal Justice Commission to recommend a change to the new law making a defendant’s third low-level theft arrest within five years a more serious crime that warrants stiffer penalties.
What changes emboldened these crooks? Three or more convictions for theft in the third degree (goods between $1,000 and $25,000), a class C felony, now carries a presumptive sentence of two to five years instead of three to five years. If only we had known an extra year at the lower end of the sentencing range was all that stood between us and anarchy.
Additionally, class A misdemeanor theft now has carries penalties of up to 30 days in jail, down from a year, and class B misdemeanor theft carries a penalty of 10 days, down from 90. A couple of months is all it takes to send to criminals rampaging (though they are strangely not affected by the fines for class A misdemeanors more than doubling from $10,000 to $25,000).
Do these changes seem relatively esoteric? Does it seem like you’d need a solid legal database and a couple of hours searching to know what sentences have changed and how? Never mind that. The offenders know – they’re always waiting, watching, using their below-average mathematical proficiency to calculate precise risk-to-reward ratios based on small discretionary changes in sentence length.
Once you’ve got your theory, it’s time for step two: apply it to every bad thing you can find. Between accusations by police and journalists, SB 91 is taking the rap for a truly bewildering array of crimes. Purported rise in shoplifting? SB 91 did it. Car thefts going up? Thanks SB 91. Bizarre murder-kidnapping that even prosecutors admit has literally nothing to do with SB 91? Our top story tonight: parents question the effects of SB 91.
To really drive home the point though, you need a horrific crime story. Alternatively, a very mundane story will do if you frame it right:
Trevor Bernard is the kind of Class C felony defendant who raises red flags under the new law. The 27-year-old from Anchorage led Alaska State Troopers on a high-speed pursuit in a stolen pickup that began near the Knik River on the Old Glenn Highway and ended only after he was forced into a ditch… Bernard eluded [a trooper] for 3 miles, made a U-turn and started driving toward Palmer at over 80 mph…
Or, stripped of its florid prose: “a very short chase at slightly above freeway commuting speeds ends without injury.”
Finally, once your audience is scared and angry, you hit them with step three – get rid of those nasty reforms:
Because of cases like Bernard’s, the departments of law and public safety are asking the Criminal Justice Commission to recommend jail for first-time Class C felonies.
Reducing incarceration for low-level, non-violent offenders is the rallying cry of the reform movement, the banner almost everyone can get behind. It survived about a year in Alaska before the wolves closed in for the kill.
This blueprint isn’t unique. In 2013, Arkansas rolled back many reform efforts following a high profile murder and DC politicians are preparing to cut back on reduced sentencing law for youth following a scorching series of Washington Post articles on youths who committed violent acts. Justice reform is always vulnerable to a single bad story.
What makes the attack on SB 91 unique however, is just how thin it is. People attacking justice reform usually have a homicide or two to work with. SB 91’s plucky little opponents are building a remarkably vocal campaign out of car thefts, the odd chase, and “emboldened offender” rhetoric that hasn’t changed since the Nixon years.
This should worry reformers. Alaska represents the best likely case for most reform efforts: no high-profile murders, no wave of violence, just property crimes and a determined opposition. If this can threaten justice reform, anything can and if reformers don’t figure out a way to counter opponents’ time tested counter-reform strategy, all of their victories will be erased a lot more quickly than they were won.