Why Criminal Justice Reform Still Needs the Right

When my co-author David Dagan and I finished our recent book, Prison Break, at the end of last year, the prospects for criminal justice reform looked good. The reason for our optimism was primarily that conservatives, after having spent much of the previous four decades embracing the tough-on-crime orthodoxy of increasing incarceration, were embracing the cause of reform.

A wide swath of red states had passed reforms aimed at reducing their reliance on incarceration, from Georgia to Texas to Mississippi. Numerous Republican members of Congress were working with their Democratic colleagues to pass a significant (if limited) bill aimed at sanding down the rougher edges of federal sentencing policy. Finally, a wide range of conservative organizations, from the American Legislative Exchange Council to the Heritage Foundation to the Koch Foundation were working together with allies on the left to push the reform cause even further. The Republican National Committee even passed a resolution urging support for “reforms for nonviolent offenders at the state and federal level.”[1]

Not even a year later, it is much harder to be optimistic that Republicans will be as engaged with the cause of cutting the carceral state back to size in the future. If Republicans continue to retreat, it will deal a near-fatal blow to the prospects for continued reductions in mass incarceration, because there is simply no way that the Democratic Party and movements of the left can carry this load on their own. The overwhelming majority of incarceration is done at the state level, and Democrats only have unified control of eight states (Rhode Island, Vermont, California, New York, Hawaii, Delaware, Connecticut, Oregon, plus the District of Columbia), which account for 343,722 inmates. The rest of the states, where Republicans control either all or part of state government, house 1.71 million people in prisons or jails. Even if every prison and jail in blue states was burned to the ground and their occupants freed, it would only cut the overall level of incarceration by a little over fifteen percent. There is simply no way, in other words, to do this job unless Republicans agree to shoulder some of the weight.

When our book came out, Republicans were increasingly agreeing to do their part. To understand why the sledding is going to get harder in the future, we need to make sense of what they were doing and why, and how the conditions that allowed them to do as much as they did have begun to shift.


Why Republicans Changed

Few readers of Cato Unbound will need to be reminded of the role of the Republican Party in the growth of the carceral state. While Democrats certainly played important roles in the expansion of the American prison population, getting tough on crime was a constitutive part of Republican ideology and political strategy in a way it was not for Democrats.

In Prison Break, we argue that the Republican party from the 1960s to the 2000s is best understood not as a party of limited government, but of order maintenance. Republicans told a story of American politics in which Democrats were on the side of the forces of disorder (criminals, drug users, welfare dependents, to some degree racial minorities, student radicals) while Republicans stood on the side of the forces of order (police, prison guards, soldiers). Republicans were not meaningfully anti-government, since they enthusiastically supported spending money on the forces of order, while sparing these forces the tools of “accountability” that they applied to the parts of the state associated with Democrats. Republicans claimed that they were willing to use force to stand up for law and decency, while Democrats sympathized with the forces of disorder.

This divided vision of the state was rooted both in ideology and political calculation. In terms of political calculation, toughness on crime was the foundation of a new political divide, one that replaced the class divisions of the New Deal with a new divide on social order and the state’s response to it. Conservatives pushed stringent punishments because they worked electorally, especially in an era in which crime was high on the public’s agenda.

This background is important for understanding why Republicans have started to change their tune on criminal justice. First, even including the recent increases, crime has gone way down overall, and with it the percentage of the public who list crime as one of the most important issues. With the issue lower on the public’s agenda, Republican politicians have found that it is not the sure fire vote-getter that it once was, and have moved onto other issues to distinguish themselves from Democrats. Second, over the last ten years the activist component of the Republican party has become more radically anti-statist, a trend reinforced by Republican office-holders’ interpretation of the Tea Party. That has led Republican politicians to become more consistently anti-statist, and to apply the same skepticism of government to the forces of order than they have always applied to schools and welfare departments. Third, Republicans have imposed a regime of increasing fiscal stringency in states they control, a policy that left no room to exempt pet projects such as prisons, especially in the wake of the 2008 recession. Fourth and finally, criminal justice has moved up the agenda of evangelical organizations, who have injected an emphasis on redemption and the humanity of prisoners into the conversation on the right.

These forces meant that conservatives who wanted the Republican Party to rethink its support for mass incarceration were working on much more favorable terrain than they were a decade ago. Players including the late Chuck Colson, Pat Nolan, Marc Levin of Right on Crime (a project of the Texas Public Policy Foundation) and others have used this opportunity to brand criminal justice reform as the authentically conservative position. They have argued for judging criminal justice by “results,” and have encouraged compassion for prisoners. They have helped drive substantial reforms in red states, including multiple waves of legislation in high-incarceration states like Texas and Georgia. Civil rights and liberties activists in those states have worked closely with these conservative reformers and credit them with policy breakthroughs that they would not have been able to achieve on their own.


Why Things Are Getting Tougher

A year ago, David and I were basically optimistic that this wave of conservative reform would only grow in the years to come. We noted that the experience of Texas and Georgia suggested that the appetite for reform seemed to grow with the eating, as conservatives reaped both policy and political benefits that encouraged them to engage in further waves of legislation. As these red states went further into more ambitious policy changes, they provided an example for other states, reinforcing the message of the policy entrepreneurs at Right on Crime that cutting prison numbers was authentically conservative, and not a matter of mimicking liberals. With each new Republican who embraced reform, a virtuous cycle began to build in which it was those who had not embraced change who had to justify their position—not the reformers.

We did note that there were reasons for worry, that things could get harder going forward. In retrospect we probably underplayed these forces. We suggested that reform benefitted from a background of relatively low levels of public concern about crime. Low salience reduced the incentives to polarize the issue and made it easier for policymakers to approach criminal justice in an empirical, fact-based fashion (often assisted by technocrats at the Pew Charitable Trusts and the Council of State Governments). Since the end of last year, crime has burst onto the public agenda in a way we have not seen in almost twenty years. While it is too early to know if it is a larger trend, murder rates in many cities have spiked. At the same time public concern about crime is increasing, and the temptation among conservatives to rally around the forces of order has returned. The activism of Black Lives Matter has also pushed politicians on the left to embrace a much more critical approach to criminal justice. With the ideological stakes on both sides more heated than a few years ago, the temptation for both the left and right to retreat to their identity-based corners has gone up considerably.

One of the most important reasons for optimism a year ago was the eagerness of senior Republicans to embrace the cause of criminal justice reform, and to weave it into a larger strategy of outreach to racial minorities. This fit with an understanding of how Republicans could make themselves electorally viable at the national level, which was to maintain Republican orthodoxy on taxing and spending while reducing their disadvantage with racial minorities through immigration and issues like criminal justice reform that did not involve increases in spending. That was certainly the basic platform of the presidential contenders who looked the most promising in the summer of 2015, like Jeb Bush and Marco Rubio, and it was what most of the senior members of the party were telling rank and file Republicans it meant to be a modern conservative.

Donald Trump, to put it mildly, had a different electoral theory, with very different implications for criminal justice. Trump has often spoken the language of white nationalism, and with it an electoral theory in which driving up the Republican share of the white working class vote replaces efforts to increase the support of racial minorities and the suburban professional middle class. That change in strategy has gone hand in hand with a shift in policy. Out went immigration reform, most prominently. But also out went the Republicans’ more recent embrace of criminal justice reform. Trump’s campaign rhetoric on crime reads as if he is still in the New York of the late 1980s. In his speech accepting the Republican nomination, Trump projected an image of America as facing out of control crime in the streets, and claimed ominously, “In this race for the White House, I am the Law and Order candidate.”

A year ago, the message to Republican politicians from their elites was to reduce our levels of incarceration, and at least some on the right were actually dipping their toe into the water of reconsidering their unquestioning support of the police (National Review had published a major piece, for example, criticizing police unions). They got the message that no one would seriously question their conservative bona fides if they worked with Democrats to pass meaningful reforms.

But what was a clear message from elites just a year ago is becoming muddied in the age of Trump. Trump allies Jeff Sessions and Tom Cotton, for instance, are among the strongest opponents of bipartisan sentencing reform in DC. If, as I expect, the Republican Party enters into full-on civil war in the aftermath of a Trump defeat, it is likely that crime, along with immigration and trade, will be key issues in the battle between reformers and Trumpistas. Instead of having conservative elites sending a unified message of reform, crime will have become part of a party factional war.


The Future of Reform

It is unclear how this reframing of criminal justice reform will impact the prospects for continuing legislative breakthroughs. At the national level, my instincts say that it will make sentencing reform even harder. So long as Republicans are in control of the House, their leaders are likely to steer clear of bringing issues to the floor that divide their caucus down the middle. The more the issue polarizes within the party, the greater the odds that bipartisan sentencing reform will not even manage to get a vote, or be watered down until it is effectively inconsequential.

On the other hand, there is a chance that a more divided Republican Congress will be one where leaders have no choice but to loosen up on their control of the legislative agenda, allowing members to make whatever coalition—including with Democrats—that they like. If Republicans split into clear Trump and reform factions, as I think likely, the odds are good that reformers will double down on the issues that distinguish them, like criminal justice. They will become more eager to make deals with Democrats, and such deals would likely be more sweeping than those that included less enthusiastic Republicans.

At the state level, where the overwhelming majority of mass incarceration actually occurs, I am slightly more optimistic. Republicans in a large number of red states have already voted for significant reforms. It seems unlikely that having done so, they will turn their backs on their handiwork. But if the Trump faction in the Republican Party successfully attracts white nationalists to run for state legislatures, then with each passing year red states will become progressively less open to reform.

One final possibility is that the significance of Trumpism on crime policy could be limited to policing. While Trump’s allies have stood in the way of sentencing reform, the man himself has focused primarily on supporting the cops and attacking Black Lives Matter protesters. While policing issues could polarize even further, conservatives might draw a bright line between cops and prisons—preserving their embrace of sentencing and re-entry reform while standing against efforts to change the way police work. That would be unfortunate, since there is much important work on policing that conservatives are more likely to lead on than those on the left (in particular the role of collective bargaining and police discipline), but it would at least preserve the momentum for cutting down on prison numbers on the right.

Those of us on the liberal side have a significant stake in how these factional divides among Republicans play out. As I noted at the beginning of this essay, there is no path to major reductions in incarceration that does not include the active participation of conservatives—the math simply does not work. While social movements on the left will likely continue to be very effective at pushing Democrats to embrace reductions in the carceral state in New York and California, they simply don’t cut much ice in Oklahoma and Alabama. Unless reformers on the left have a theory of how they will generate a mass movement sufficiently powerful to push these states to reform—and I do not believe that they do—there is no pathway to cutting American prisons down to size that looks much different than the incremental, but increasingly ambitious, political strategy that has gotten red states this far.


Also from this issue

Lead Essay

  • Steven M. Teles surveys the recent history of criminal justice politics in the United States. He finds it hard to deny that advocates of reform have suffered a reversal: The law-and-order message of Donald Trump’s candidacy seems like it may bring Republicans back to where they were two decades ago on criminal justice policy. But without conservative political support, the legislative process in the states will not yield significant de-incarceration. The large majority of the incarcerated are under the authority of the states, and the Republican Party has some share in the government of many of them. Teles sketches some possible ways forward for reform, but all of them involve continued conservative activism on this issue.

Response Essays

  • Peter Moskos surveys a rapidly shifting political landscape: With Donald Trump as the president-elect, all bets are off. The reform of our incarceration system seems further away than ever. Reducing incarceration will certainly require both ending the war on drugs and greatly reducing sentence length for all types of crime. Neither seems politically possible now. And perverse incentives will continue to keep sentences long even for relatively minor crimes: Local officials do not pay for the incarceration of those whom they give longer sentences. For these, the costs are passed along to the state governments.

  • Jonathan Blanks looks beyond partisan politics, to a culture that sees incarceration as the solution for too many problems. Neither party has done much to address this stubborn feature of our political life. Blanks sees the failure of mens rea reform as illustrative of the difficulty: Neither side could be counted on to take the de-incarcerating view when it really mattered. The left has likewise been all too willing to deploy harsh sentencing at times when its other political goals seem to demand it. But both of these are only a small matters, in context, because significant reductions in our prison population will require shorter sentences in general, and for all violent offenders.

  • Marie Gottschalk doubts that Republicans were ever serious about doing the hard work that de-incarceration would require. She notes that the project’s fiscal benefits would likely be modest, and that even framing the issue as just one of saving money tends to obscure the real work of building crime-free communities and curbing institutional racism. Successful de-incarceration will require more money, not less, she argues, to help with the educational, health, and re-adjustment needs of former prisoners. These questions of social justice can’t easily be addressed when conservatives’ chief interests lie with saving money alone.