The Politics of Prison

To get something done in politics, notes Steven Teles, you need to work with those in power. Now more than ever, that means the Republicans. And not just in all branches of the federal government, but at the state level as well. Republicans have unified control in 24 states and partial control of 20 others. Democrats have unified control in six states, down from eight pre-election.

A few years back, for a brief while, it really did seem as if conservative Republicans were interested in reducing the number of prisoners in America. Teles argues that once conservatives get in a position of political omnipotence, they don’t have liberals to kick around anymore. Political control brings policy ownership. Without fear of political defeat or being labeled “soft on crime,” conservatives are free to judge prisons on cost, effectiveness, and even morality. For Tea Party conservatives, prisons fell under the rubric of unaccountable state power to be smote just as much as teachers’ unions, welfare bureaucracy, and the EPA. Under conservative evangelical leadership, there was a shift in the political ideology about incarceration and incremental progress in reducing incarceration numbers. Most notable was a declining prison population in deep-red Texas.

Let me take a moment to state what I hope is obvious: American incarceration is a problem. We lock up more citizens, by rate and per capita, than any other country in the history of the world. Ever. It didn’t used to be this way, and it doesn’t have to be this way. Before 1970, America never had more 350,000 prisoners. And then came the war on drugs, longer sentencing, and more sentencing. We now have more prisoners than China, and China has a billion more people than we do.

As for the election of Donald Trump, all bets are off. Nobody really has a clue how his ascendency will affect incarceration. Perhaps Trump’s supposed fiscal propriety will see the futility of prison in purely financial terms. More likely, his policies on immigration alone will increase the number of prisoners and detainees in the coming years.

Incarceration became “mass” when crime was of greater public concern in the 1980s. After crime decreased and faded in the public’s consciousness, being “tough on crime” was a less effective conservative vote-getter. The stories of conservatives finding God and turning against prison are fascinating at a moral and personal level (and well described in Prison Break), but the impact of these evangelical crusaders was limited. It meant that 2.3 million prisoners became 2.2 million prisoners.

That one could be anti-prison and conservative was a marked philosophical shift, but I suspect conservative prison reform, at least for an average Republican politician, was less a moral realignment than a matter of dollars and cents. As libertarian influence shifted the conversation, big-ticket items like police and prisons couldn’t be left off the small-government chopping block. But any Republican willingness to release prisoners would quickly confront the reality that most prisoners have indeed done bad things. That’s why moral reformers be damned, the right was never going to massively reduce incarceration. The growth of the U.S. prison population was less about ideology, order maintenance, or statist overreach than about exploiting a political wedge issue based on the politics of racism and fear.

Under President Trump – barring religious conversion combined with a Nixon-goes-to-China moment – the odds of reducing incarceration are low. When Prison Break was published a year ago, Teles was more optimistic about reducing incarceration. But even this limited optimism may have been overplayed. Between 2010 and 2014, Texas saw all of a four percent reduction in prisoners. While down is better than up, four percent is hardly a sign of seismic shift in incarceration policy.

There are indeed some extremely low-hanging fruits of de-incarceration, some truly nonviolent offenders and others who may have been ignorant of the crime they committed. But after this, even many of the “nonviolent” offenders committed acts of violence before being incarcerated. Our near-total abandonment of jury trials in favor of plea bargaining makes it difficult to know what exactly prisoners did to earn their sentence (e.g.: difficult to prosecute assault cases, which often need victims to testify, can be pled out as non-violent drug offenses when drugs were also involved). As long as we unquestionably accept that violent offenders need to be locked up as often and as long as they are, and as long as prison is the only way we punish, large-scale reduction in incarceration cannot happen. To return to pre-1980 levels of incarceration in America, 80 percent of prisoners would have to be released. This will not happen.

To reduce incarceration we need to end the mechanisms that lead to it: namely, the war on the drugs and longer sentencing for all crimes. Another little noticed factor, well observed by Teles, is the absurd fiscal incentive locally elected officials have to sentence criminals to more than a year. Doing so shifts the considerable expense of incarceration from the local jail and municipality up the chain to the state prison and the state’s coffers. A sentence of less than a year is served in jail instead, and the funds to pay for it are most likely from the same pot as the judge’s salary (and might be funded by those who elect the judges). A sentence of more than a year is served in prison and is paid for by the state. If one could simply shift the budgeting of any imposed sentences to those who actually placed the sentence, it would have a miraculous effect on reducing sentencing culture. More minor offenders would face a few weeks or months in jail, rather than a year in the state penitentiary.

These reforms would have to happen at the state level, but the influence of the 50 states is not everything. Federal influence trickles down to the states as well. The fact that so many states  simultaneously increased the prison population both when crime was rising in the 1980s and falling in the 1990s implies there is some greater federal unifying political influence at work.

Another factor suggesting that state party political dominance may be less significant than Teles argues is the huge variance between the lesser carceral states (with incarceration rates of roughly 300 per 100,000) and the greater carceral states (which are closer to 900 per 100,000). The states with the lowest levels of incarceration – still high by historical and international standards – are not all under uniform Democratic control. Rather they are left-leaning in general, with mixed-party control of the state government. The general left-leaning persuasion of the populace seems to be more important than the specific mechanisms of party dominance.

If one grouped the District of Columbia and the eight Democratic-dominated states (that is, before this election), this True Blue State would rank 35th nationally in terms of incarceration (526 per 100,000). While below the national average, it’s hardly a case of extreme de-incarceration. For whatever reason, more politically diverse states have managed lower levels of incarceration in spite or because of their political heterogeneity.

It’s not easy to write history as it happens. Like Teles, I too thought that the Republican Party would enter a “full-on civil war in the aftermath of a Trump defeat.” Now we’re more likely to see cleavage among the Democrats, with a split between the socialist “progressive” left and mainstream pragmatic liberals. The latter group, sheared of ideology, would appeal to the great moderate middle and never-Trump Republicans. Where this moderate middle would position itself on incarceration is unknown, but right now the issue is unlikely to be at the top of any agenda.

On crime and police, the first steps in incarceration, Democrats in the past two years were eager to abandon 20 years of generally pro-police policy dating back to Bill Clinton and Al Gore. Trump’s victory could allow the left (at least the moderate left) to shift from the #BlackLivesMatter police-are-the-problem mentality to one more focused on actually preventing crime. Lower crime is a great boon to liberals, as it’s not so bad to be “soft” on something that rarely happens. Prison is a political choice more than a crime-control strategy. We will soon have a president who chooses to blame foreigners and Muslims for our nation’s crime and other problems. He had advocated torture, mass deportation, “law-and-order,” and for-profit prisons, and we will soon see if he governs accordingly. Had Hillary Clinton won the election, an unprecedented two-year 25 percent increase in nationwide homicide since 2014 would certainly have revived crime as a wedge issue and placed Democrats on the defensive. It still may. The coming days could be dark indeed.

Also from This Issue

Lead Essay

  • Why Criminal Justice Reform Still Needs the Right by Steven M. Teles

    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

  • A Pox on Both Your Houses by Jonathan Blanks

    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.

  • Wrong on Crime by Marie Gottschalk

    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.

The Conversation