Wrong on Crime

The 2016 election has been widely viewed as the death knell for comprehensive criminal justice reform in Washington. On the campaign trail it was back to the law-and-order 1960s and 70s as Donald Trump made Nixonian appeals to a “silent majority.” The Republican nominee warmly embraced hardliners who championed militarized policing and blamed Black Lives Matter for a reputed rise in violent crime and attacks on police officers. Sen. Jeff Sessions (R-AL), Trump’s choice for attorney general, is a longtime foe of even modest sentencing reforms and an ardent champion of wielding an iron fist in immigration policy.  

Steven Teles mourns what may be the beginning of the end of the “smart on crime” era in which historic adversaries across the political spectrum joined forces to reverse the exceptionally punitive policies and politics that turned the United States into the world’s leading warden. Teles singles out Right on Crime, a group of brand-name conservatives that included Newt Gingrich, Grover Norquist, and Charles and David Koch, as a critical, perhaps indispensable, player in this coalition and in efforts to reduce the U.S. incarceration rate.   

Trump’s outsized personality and spectacular victory obscure the reality that the smart on crime approach to criminal justice reform had severe limitations and weaknesses that have been hiding in plain sight for years. Trump was no political meteorite that blew up the elite bipartisan reform coalition as it blazed through an uncharted political universe. In fact the politics that gave birth to this strange bedfellows coalition help to explain both its limited accomplishments and the triumph of Trumpism.     

This coalition congealed around the purported fiscal burden of mass imprisonment, especially in the wake of the Great Recession.  Yet this budget-cutting optimism was unwarranted from the start. Despite the unprecedented prison boom, corrections costs remain a relatively small component of state expenditures—less than half of what states spend on highways. Most prison costs are fixed and are not easily cut. The only way to seriously reduce spending on corrections is to shut down penal facilities and lay off correctional staff. Faced with powerful interests that profit politically and economically from mass imprisonment, most states ended up making largely symbolic budget cuts that did not significantly reduce the incarcerated population. But they did render life in prison and life after prison leaner and meaner thanks to cutbacks in programs, health services, and even meals for people who are incarcerated. The few states that made sizable cuts in their prison populations, notably New York, New Jersey, and California, were deep blue ones that have yet to realize major budget savings.

The fiscal argument for penal reform obscured the reality that successful decarceration will likely cost more money, not less, at least over the short and medium term. People reentering society after prison need significant educational, vocational, housing, health, and economic support to ensure that the communities they are returning to are not further destabilized by waves of former prisoners. If we are serious about alternatives to incarceration, then community-based mental health and substance abuse programs will need major cash infusions.  

Elite politicians and policymakers doggedly pursued a reform agenda centered on reentry, justice reinvestment, and reducing recidivism rates—the 3 R’s. Serious discussion of ameliorating the structural causes of high concentrations of crime and poverty in certain communities was not part of the political equation. At a time when the pillars of the U.S. welfare state were being pummeled by direct assaults from leading conservatives associated with Right on Crime and by gentler jabs from President Obama and some other top Democrats, it is hard to imagine that calls for justice reinvestment would actually result in reallocating the tens of billions spent annually on corrections to social and economic programs that reduce crime and improve the lives of people residing in high-crime communities.

The obsessive pursuit of short-term goals in penal policy in service to budget deficit concerns crowded out more ambitious goals. Reducing the country’s incarceration rate to its historical norm of 120 to 130 inmates per 100,000 people—or about one-sixth the current rate—was off the table. So was a relatively more modest goal like cutting the incarceration rate for jails and prisons in half, to about 350 per 100,000, which would still be extraordinarily high compared to that of other Western countries.

Evaluating each penal reform primarily by putting it on the evidence-based, cost-benefit scales to determine whether it reduces crime while saving public money reinforced the tight linkage in the public mind between punishment and crime. It was at odds with leading research that crime rates move up and down quite independently of punishment practices.

The 3-R and smart on crime approach was widely portrayed as a way to wring politics out of penal reform. The aim was to devise penal reforms that attracted overwhelming bipartisan consensus. But this goal came at a high political cost. It left largely unchallenged key political and economic calculations and interests that built and sustain the carceral state.

Contrary to Teles’s claims, the roots of the punitive turn do not lie primarily with the Republican Party. The Democratic Party was an important accomplice dating back to the 1960s and not just a bit actor playing catch-up in the face of Willie Horton and other racialized calls for law-and-order by Republicans. Democrat Bill Clinton staked his campaign for the White House on a kinder, gentler version of the Southern strategy to woo the Reagan Democrats back to the party. Hillary Clinton’s association with the inflammatory super-predator rhetoric of the mid-1990s dogged her campaign in 2016. It undermined her contention that she would chart a less punitive path and strained her relationship with African Americans, especially younger blacks. Recasting the problem of mass incarceration in ostensibly nonpartisan econometric or cost-benefit language did little to challenge such excessively punitive rhetoric.

The fiscal imperative framing avoided hot-button issues, like the racial injustices that helped build and sustain the carceral state. As such, it was incapable of tapping into the explosive calls for wholesale criminal justice reform that erupted with the police shooting death of Michael Brown in Ferguson and the emergence of the Black Lives Matter movement.

The fiscal frame constricted the political space to challenge penal policies and practices on social justice or human rights grounds. Among elite policymakers and the wider public, creating a safe, healthy, and humane penal system is generally not considered a credible and desirable public policy goal on its own. This goal has to be linked somehow to enhancing public safety and saving public money. Moreover, the fiscal argument was no match for the considerable economic interests that are now deeply invested in the carceral state.

Promoting Right on Crime as an indispensable anchor of the reform coalition created a profound case of political cognitive dissonance. Elite-level reformers celebrated Right on Crime even as the Koch brothers deployed massive amounts of “dark money” to shred the very things proven over the long time to enhance public safety and foster a more just criminal justice system—an expansive social safety net and low levels of economic inequality. Grover Norquist, a prominent figure in Right on Crime initiative, is the nation’s foremost anti-tax crusader and is widely known for bluntly stating that he aims to shrink government “down to the size where we can drown it in the bathtub.”

The controversy surrounding Obamacare starkly called into question the depth of Right on Crime’s commitment to fiscal pragmatism over ideology in criminal justice reform. Key figures in Right on Crime have been some of the loudest voices encouraging governors and legislators to opt out of expanding Medicaid under the Affordable Care Act. States that have opted out have forfeited gargantuan sums of federal money desperately needed to support health care, substance abuse, and mental health programs that are key for treating low-income people in the community and keeping them out of jail and prison. The opt-out states have also forfeited the opportunity to shift a large chunk of the medical costs of treating incarcerated people onto the federal tab. Texas, unjustifiably lauded as the epicenter of comprehensive criminal justice reform, stands to lose $10 billion a year in federal money because of its decision under Gov. Rick Perry, another Right on Crimer, to opt out.  

Medicaid expansion remains the biggest game changer within easy reach for criminal justice reform today. It has the potential to be far more consequential over the long term than the modest sentencing reform bill that has languished in Congress for more than a year and has been the centerpiece of the elite bipartisan reform coalition.

The preoccupation in the media and policy circles with the 3 R’s and the Right on Crime overshadowed the growing and promising political ferment at the grass-roots level against the carceral state. New groups have been forming at the state and local levels to battle various aspects of the carceral state, including felon disenfranchisement, solitary confinement, the abuse of transgender people in prison, exorbitant telephone rates for incarcerated people, the shackling of pregnant women during labor, and employment discrimination against people with criminal records. It remains an open question whether all this ferment will develop into a broader movement to challenge not only the carceral state but also other growing inequities in the United States.  

The latest data on incarceration rates are a painful reminder that the rhetoric of reform has far outpaced the reality of reform. While the total number of people in U.S. prisons and jails has stabilized since the Great Recession, no major contraction was in sight—even prior to the onset of the age of Trump. The U.S. incarceration rate of 700 per 100,000 remains nearly the highest in the world. The total U.S. jail and prison population for 2014 was just a hair below the 2008 total, the peak year in the decades-long surge in incarceration.

Hitching the movement against mass incarceration to the purported fiscal burden of the carceral state bolstered the neoliberal, austerity-first view of what is possible in American politics today. Politicians and policymakers across the board have treated shrinking government budgets as a political given rather than as political terrain to be contested. What was once the conservative stance on what ails the U.S. economy became the mainstream bipartisan position, as pointedly evidenced President Barack Obama’s wholesale embrace of deficit politics early on in his first term. The fiscal frame also obscured the deeper structural problems that vex the U.S. economy, including promiscuous globalization, excessive financialization and deregulation, and alarming economic inequalities that are hollowing out the U.S. economy and standard of living.

The histrionics of the Tea Party and Donald Trump allowed the Democratic Party to postpone its own day of reckoning by positioning itself as the pragmatic, competent adult in the room. As the 2016 election laid bare, this was a costly strategy.  Success in the future will require convulsive politics from below that clearly identifies the emerging rentier class and oligarchy—not the emerging majority of immigrants and people of color—as the primary threat to the 99 percent.

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.