This “Tough-On-Crime” Politician Is Singing A New Tune On Criminal Justice Reform, But Should We Buy It?

The setting is Massachusetts.  It’s early in the 1990s, and a circle of lawmakers and politicians are working together to politically capitalize on a brand new public sensation: fear-mongering around so-called “super-predators”, or young sadistic teenagers with the capacity to commit unthinkably heinous crimes.

Struck with sensationalized images and stories of city gang violence, people were convinced that America was facing an onslaught of a radicalized, sociopathic youth.  On every corner could be one of these young predators, they thought, waiting to brutally take a life without consideration.  People wanted protection, and leading political figures saw it as an opportunity to score political points by addressing these, if misguided, genuine fears.

What resulted from those efforts were a series of laws directed at juvenile offenders that would fail to make important distinctions between adult criminals and corrupted, immature juvenile delinquents.  What resulted would be a major push towards “tough-on-crime” policies that would exacerbate and expand the tragedy of mass incarceration.

And yet in 2017, a time when the topic of police brutality and a broken criminal justice system is prevalent in political conversation, it seems figures who were so instrumental in the shift towards tough crime policies two-and-a-half decades ago are now changing course without a word of how they put us on the wrong track to begin with.

We see this through a recent editorial put out on the Boston Globe by Wayne Budd, former Attorney for the District of Massachusetts.  His recent piece in the Boston Globe, titled “A Tipping Point for Criminal Justice Reform”, is filled with important ironies that should be noted and addressed before his new-found commitment to criminal justice reform can be taken seriously.

In it, he rails against the ills that have come from an age of heightened mass incarceration and harsher criminal justice principles.  Citing a report released a few months ago by the Massachusetts Criminal Justice Reform Coalition, he explains the need to reverse missteps like high incarceration rates, cuts in rehabilitation programs and mandatory minimum sentencing.

Before we are so quick to listen to and heed the calls for criminal justice reform from Wayne Budd, we should be fully aware of his background and role in creating the issues he now laments.

We can follow Budd back to his time working in Massachusetts with his law firm, Budd and Reilly.  The second name will sound familiar to Massachusetts residents; Reilly is Tom Reilly, former Massachusetts Attorney General.  Reilly and Budd have been lifelong friends, running this law firm together and even running campaigns together when Wayne Budd served as Reilly’s campaign manager.

When the “tough on crime” mentality was taking over the imaginations (and ambitions) of Massachusetts politicians, Wayne Budd was right there in the center of the action.  When local and state officials began to worry about the possibility of a riot set off by racially-charged police brutality, Wayne Budd advised then-Governor Bill Weld to appoint an African-American as District Attorney to Suffolk County to deter protest.

Budd’s close relationship with Tom Reilly cannot be missed.  In a 2001 issue of Boston College Law Review, Christine Chamberlain pinpoints a important and relevant source of the advance of harmful mandatory-minimum sentencing procedures for juveniles:

“The need for more serious punishment for juveniles who commit very serious crimes was expressed by Massachusetts state legislators, district attorneys, the Attorney General and the Governor, following the initial decision of Judge Paul Heffernan to try fifteen-year-old Edward O’Brien as a juvenile for the gruesome murder of his neighbor”.

District Attorney Tom Reilly personally served as the prosecutor for the Eddie O’Brien case, a highly unusual role for any DA to be playing on a trial of such stature.  As Chamberlain points out above, this was the case that made way politically for the sentencing of children to adult prisons for life with no parole, a practice deemed unconstitutional in 2015.

It takes a little putting the pieces together, but as one begins to explore the history of the prosecutors of this case, it begins to look like tough-on-crime policies were being used to satisfy political ambitions.

The Edward O’Brien case was recently reviewed with its conclusion challenged by author Margo Nash in “The Politics Of Murder”.  While her stance that the 15-year-old boy at the center of the case was innocent and a victim of political gain has not been confirmed, the unconventional and sloppy practices by the prosecution revealed in the book leads one to take pause.  In Nash’s eyes, prosecutor Tom Reilly his network of support from figures like Governor Bill Weld and Wayne Budd used this case to amass support for mandatory minimum sentencing, thereby increasing their own political standing.

And indeed, as we follow the political history along, we see that these men had no lack of the political ambition central to the motive we have asserted.  After the Eddie O’Brien case and other public pushes towards tougher policies, Governor Bill Weld would unsuccessfully challenge Democratic Senator John Kerry in the 1996 Senate election.  Tom Reilly would successfully run as Attorney General in 1998 and be re-elected in 2002.

As for Wayne Budd, his work in the field of criminal prosecution landed him his own impressive positions in the political world.  Though before the onset of Eddie’s case, he served as U.S. Attorney for the District of Massachusetts from 1989-1992.

He also served as Associate Attorney General of the U.S., overseer of the Civil Rights, Environmental, Tax, Civil and Antitrust divisions at the Department of Justice and served on the Federal Bureau of Prisons as an appointee of President Bill Clinton.  Notably, the Clinton administration is now widely criticized for exacerbating the issue of mass incarceration, though Budd’s connection to those policies are less clear.

In Wayne Budd’s editorial, he eloquently diagnoses what happened in Massachusetts and across the country to erode the morality of the criminal justice system:

“For the past two decades, like other states across the country, Massachusetts responded to sensationalized events with tough-on-crime policies that sent more people to prison and kept them there longer.  At the same time, the state cut back on treatment and reentry services that can alleviate underlying problems that lead individuals into criminal activity.  Without help, prison simply reinforces criminogenic tendencies, leading these individuals to reoffend.”

Budd is spot on, and he even gives a prescription for how to start addressing the issue:

“Reform starts with sentencing, in this case immediately repealing ineffective mandatory-minimum sentences that keep judges from considering circumstances that may warrant less time in prison.”

But no where in this editorial does Budd address his own role, and the role of his own close peers, in pushing for these mandatory-minimum sentencing policies.  No where does he explain his change in heart and mind that prompted this change in tune on issues of criminal justice.  His past and the past of others responsible for pushing these harmful policies seems to be brushed over by claiming it was all part of a wide-spread mass hysteria over sensationalized crime.

We could give him a pass.  We could take Wayne Budd’s editorial for what it is, be thankful that he has indeed changed course in the right direction and go on letting individuals like him shape the criminal justice policies of the future.

Or we could ask a deeper question.  How seriously should we take Wayne Budd’s commitment to positive criminal justice reform that will inject humanity and decency into the way we deal with our nation’s prison population?  Could Wayne Budd simply be blowing hot air in the direction of the current political winds now that the tides have changed?

Back in the 90s, often racially-charged and sensationalized violent crime was leading the public into a panic.  People wanted a way to know they would be safe in the streets.  Instead of assessing the situation calmly and taking a strategic, measured approach, officials like Bill Weld, Tom Reilly and Wayne Budd used this public hysteria as a wave to surf right into political promotion on.

As a result, more people went to prison unnecessarily for longer.  Punishment was emphasized over rehabilitation, and entire legions of human beings, often with little more than a drug charge, were left to rot in a correctional system devoid of compassion.  More children, with minds that had not yet developed and personalities that had not yet matured, were punished as if they were adults.

The citizens wanted safety, but these tough-on-crime policies had the opposite effect by over-incarcerating and criminally radicalizing people behind bars so that they’d be more likely, not less, to commit crime when they left.

Today, more and more of the public has realized the failure of the criminal justice policies of the past.  Politicians, particularly Democratic politicians, who want to be taken seriously are having to ride a new wave of compassionate correctional reform.  Should we trust figures like Wayne Budd to truly have the integrity and will to lead us into an era of criminal justice reform?  Or without admitting responsibility and explaining the change in course, should we assume Budd is still playing the game of political gain by trying to follow the popular rhetoric of the day?