Insight From Oregon

If we open ourselves to the experience, we can benefit from the most unusual events—like, for instance, the determination by a small group of men and women to take over unoccupied federal buildings in the dead of winter in a remote, sparsely populated dot of land in southeast Oregon. Who would’ve thought this curious episode could advance the cause for criminal justice reform?

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As I have often described, the modern criminal justice system has grown to its current bloated condition as a result of successive waves of demonization over the past four-plus decades. Demonization is the conviction that some among us are not merely misguided but evil. They believe as they believe and act as they act not because they are mistaken, but because they are intrinsically and irretrievably bad, or so we convince ourselves.

Holding this view demands a particular form of mental gymnastics. As I have written elsewhere, it requires collapsing people into caricatures, “stamping out all humanity and leaving in its place a cartoon figure of pure malevolence, a phantom that cannot survive in the real world but that lives easily in the fears of an anxious nation.” Then, as the final step in a timeless ritual, we begin to act against the mythical creature we have created, leading again and again to cruelty.

Worse, we have to realize that those we cast beyond the pale have every reason to see themselves as “us” and to construct us as “them.” They too will act on the mythical creatures they have created, leading to reciprocal atrocity and shared misunderstanding. In an age of violent extremism, I have never thought it was sensible to venture down this road.

As regular readers know, I oppose demonization in all its forms. Across the long arc of American history, it has been the wellspring of incalculable misery.

Yet demonization is much in vogue nowadays, especially in the collective lunacy we call a presidential campaign. Eduardo Porter in the New York Times recently lamented the resurrection of racial politics, which I have written about before. But it is not simply the new and renewed attacks by the Right on Muslims, Latinos, immigrants, and blacks. For some time, the Left has condemned the Right in comparably distorting, moralizing terms. Venom surrounds us like the smog in China, as easy to detect but even more dangerous to absorb.

I have little hope that the impulse to demonize will disappear anytime soon. To put it simply, we demonize others because it makes us feel better about ourselves. Hardening the psychic barriers that separate us from them allows those on both sides of the mental Maginot Line to forge a stronger communal identity. We are those who are not them, which provides an especially welcome sense of comfort to people who feel their identity under siege. And since some groups in society always feel their identity under siege, especially in a dynamic society, demonization never loses its appeal.

So what has all this to do with our earnest friends in Oregon? If demonization has an Achilles heel, it is the unifying potential of shared experience.

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By way of brief background, two ranchers in rural southeast Oregon—a father and son—were charged with setting fire to government-owned lands and convicted in federal court. The trial judge initially held that the five-year mandatory minimum sentence required by statute was unconstitutional and imposed a substantially shorter term. The Department of Justice appealed to the Ninth Circuit Court of Appeals, which reversed the trial court and ordered her to sentence the pair to five years, which she did.

Thereafter, a group assembled to support the defendants and protest the new sentence as unduly harsh and an abuse of federal authority. This protest, which was entirely peaceful, also drew inspiration from a long animosity between ranchers in a number of western states and the federal government, acting through its agents, the Bureau of Land Management and the Fish and Wildlife Service.

In the course of the protest, a small group broke from the core and drove to a nearby federal wildlife refuge, where they took over a number of unoccupied buildings to protest not simply the injustice done to the two ranchers, but what they perceive as the larger issue of unlawful federal ownership and consequent misuse of western lands. Wisely, the federal government has thus far taken no steps against these protesters, who likewise have been steadfastly peaceful.

I have deliberately tried to describe this affair in the most neutral language available, though anyone who is so inclined can find denunciations of the direct and remote participants in this dispute—from the trial judge who followed the directive of the appellate court to the federal prosecutors who pursued the original charges to the Department of Justice to the Bureau of Land Management to the protesters themselves—in the most abrasive and abusive terms. Unsurprisingly in the present climate, even President Obama comes in for a fair share of abuse, as though this were his fault.

But in the hail of invective, we risk losing sight of the fact that the triggering event was an order by a federal judge that two ranchers serve five years in prison—substantially more than she thought was fair—because a federal statute required this mandatory minimum term. At one level, therefore, events in Oregon provide yet another demonstration of the misuse (and over-use) of the criminal justice system. Reformers have railed against identical abuses for many years, including especially the unthinking increase in mandatory minima, and this case demonstrates as well as any the stupidity of one-size-fits-all justice.

Don’t get me wrong. I am not naïve, and do not remotely suppose that experiences like this automatically translate into a shared determination to join forces, to reach across mental barricades and seize the outstretched hand of those formerly known only as the other. This is not TV. The human mind has developed an exquisite capacity to seize upon the finest distinctions, and differentiate between one’s own predicament and another’s. Viewing recent events, many will distinguish between those for whom a five year mandatory term is prudent and just, and those for whom an equivalent term is senseless and cruel.

Still, if we cannot count on our friends in Oregon to become instant criminal justice reformers, we should not be too quick to dismiss the value of common experience, for it can provide a foundation for shared understanding—a dawning realization that can penetrate the densest mental barrier, slowly illuminating even the mind most determined to remain shut and most hardened against mutual understanding.

We recently learned, for instance, that Jeb Bush’s daughter has long struggled with addiction, an experience that has understandably softened his view of unlawful drug use. His daughter can never be a demon in his eyes. In a sense, Jeb Bush is the linear and ideological descendent of Ronald Reagan and his departure from Reagan orthodoxy on the criminalization of drug addiction is a welcome sign of the times.

Examples like this are easy to come by. The late Chuck Colson, for instance, who achieved notoriety as President Nixon’s “hatchet man” when he served as Special Counsel during the Watergate scandal, dedicated the second half of his life to prison reform after serving time in federal prison. Today, the ministry Colson started after his release, Prison Fellowship, provides one of the most important conservative voices in support of criminal justice reform.

In any case, social change does not invariably require this sort of kumbaya moment. For change to happen in this country, it is not necessary that everyone come to the same conclusion for the same reason. If that were the case, change would almost certainly be impossible. Today, for instance, there is broad (though not universal) agreement that same-sex couples should have a right to marry, and that the Supreme Court got it right in Obergefell v. Hodges.

But no one supposes that all those who support the result do so for the same reason. Some, for example, may cheer the expanding meaning of equality and liberty, while others might welcome the state’s withdrawal from the field of social relations. In the same way, criminal justice reform does not require that the Koch brothers and George Soros see the world the same way. All that is required is that they (and many others) begin to see problems with society that can be traced to the misuse (and habitual over-use) of the criminal justice system. In politics as in love, strange bedfellows come together for reasons of their own.

The men and women protesting in Oregon have felt the pitiless cruelty of the American criminal justice system. Let us hope the experience inspires them to see themselves in the comparable cruelty visited upon countless others. But even if it does not, we may nonetheless hope they and their invigorated supporters will join with others across the country to demand transformational reform of the criminal justice process.