As I mentioned in my first installment, criminal justice reform can be highly localized by installing and electing prosecutors who approach the position with a less punitive mindset than has been common in recent decades. Going a step further, it is important to note that there is more to state and local criminal justice apparatuses than prosecutors, and these other aspects too should be utilized if American criminal justice reform is to have a future.
Given the prominence of the federal government in national media and the temptation to bring sweeping legislation to impose change in the face of gross injustice, the inclination to look toward Washington for meaningful reform is understandable. Where the federal government maintains and exercises the most power—such as regulation of international and interstate commerce, foreign policy, and immigration enforcement—national lobbying and reform efforts makes a great deal of sense. But the general police power remains with and within the states, and that necessarily limits how much good national reform can bring.
Under an administration that putatively welcomes criminal justice reform, this local limitation appears to be a hindrance to progress. However, as we will soon find ourselves under an administration much more hostile to criminal defendants, the limited role the federal government has in American law enforcement almost seems like a blessing, if a small one.
With the announcement that Senator Jeff Sessions is to be President-elect Trump’s nominee to head the Department of Justice, meaningful federal criminal justice reform becomes even less likely than it seemed just after the election. Ethan Nadelmann of the Drug Policy Alliance called the AG nominee “a Drug War dinosaur” for his anachronistic approach to marijuana and other drugs. Not only will a Sessions-led DOJ be less likely to support major federal reform efforts aimed at drug offenders, he may roll back guidance instituted during the Obama administration to tolerate marijuana businesses that operate within state laws where the drug’s medical or recreational use has been legalized.
To fight back, and keeping in line with Professor Teles’s belief that the political Right can be a force for good in criminal justice reform, state and local areas should resist federal encroachment into their constitutionally protected powers.[i] Federalism has already been instrumental in marijuana legalization and marriage equality, and many on the Right have prided themselves in their dedication to our federalist system. In the coming years under a potentially energetic Sessions Justice Department, we may just see how dedicated to the federalist proposition Republicans really are.
In addition, several municipalities that have previously been designated “sanctuary cities” for refusing to use local resources to proactively enforce federal immigration law have announced their intention to continue their policies under the next administration. Many city halls’ defiance of the incoming administration’s promise to crack down on immigration violations signals intergovernmental challenges ahead. Perhaps these municipal leaders of the political left may rediscover the utility of legal federalism and encourage allies to do the same.
It’s difficult to be very optimistic about more humane criminal justice policies in the next four years. That said, state and local leaders who are committed to fairness and doing what is right for their own communities retain the power and ability to make the changes they deem necessary. Reformers on the Left and Right should not let these opportunities slip away at the local level the way it has at the federal one.
[i] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Constitution of the United States, Amendment Ten.
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.
In the opening essay, Professor Teles lays out the problems he sees in meaningful criminal justice reform because of infighting on the political right. For the most part, I agree with his analysis regarding the conflicts within the Republican coalition and the obstacles they presented up to this point in the 114th Congress. But that is not the whole story of why we don’t have a comprehensive federal bill in the imminent lame duck Congress. And the much larger problem—the American appetite for criminal punishment—is not something that neatly cuts down partisan lines at the federal or local levels.
In 2013, the House Judiciary Committee established an Overcriminalization Task Force. It was a bipartisan group that lacked the legal powers of an official subcommittee, but nevertheless held hearings to discuss pressing matters in the federal criminal justice system.
One of the early areas of agreement in the Task Force was the need for mens rea reform. For those unfamiliar with arcane Latin legal terms, mens rea is the ancient concept that for someone to be held accountable for a criminal act, they had to have a “guilty mind” or criminal intent. For example, if you accidentally pick up the wrong bag at the airport terminal, you should not be charged with theft because you made a mistake trying to retrieve your bag.
On the other side of the coin, for some crimes, legislatures have designated what are known as strict liability offenses. That is, whether or not a person knew he was committing a crime, the person is criminally liable for the act. A common variety of this is selling alcohol to an underage person or providing a firearm to a felon.
Finally, instead of either of these explicit instructions to guide prosecutions, Congress has failed to set any scienter requirements—that is, what level of knowledge is required for a person to be held criminally liable—in many of the myriad laws and regulations that carry criminal penalties.[i] An absence of clarity gives prosecutors a wide amount of latitude in whether to bring criminal charges for violations that a person didn’t know existed. To remedy the ambiguity, a default mens rea provision was to be included in federal criminal justice reform to close the gaps where they exist. This provision would not preclude or override any strict liability laws or other explicit scienter requirements already on the books. It would simply say that absent Congressional clarity, the courts should assume that criminal liability is commensurate with mens rea.
At some point between those hearings in 2013, in which Representatives Bobby Scott (D-VA) and John Conyers (D-MI) led other Democrats in calling for mens rea reform, and 2015, many Democrats and their allies turned against a default mens rea provision. Despite mens rea reform support from traditionally left-of-center organizations like the American Bar Association and the National Association of Criminal Defense Lawyers, the White House and others came out strongly against the provision. Even the executive director of the ACLU wrote a letter to the editor in the New York Times echoing that position. The fear, it seems, is that corporate wrongdoers will get away with environmental and other regulatory crimes if the government strengthens the scienter requirements.[ii]
If it were only mens rea, which is an important principle but somewhat tangential to the topic of de-incarceration of this series, the broader political left might have retained the moral high ground in the federal debate, given the Republican-led efforts to undermine reform that Professor Teles described in his essay. But there is more.
The Obama Justice Department, specifically Deputy Attorney General Sally Yates, issued a memorandum earlier this year about what companies need to do to get credit for cooperating with a DOJ investigation. The upshot of the so-called Yates Memo is that a company must “provide…all relevant facts relating to the individuals responsible for misconduct” to the Department of Justice.[iii] In practice, this means the company must do an internal investigation and turn someone over to the DOJ for prosecution as a precondition that the company will not face a potentially ruinous indictment or lawsuit.[iv]
And these tough-on-crime policies are not limited to the white collar realm and corporate responsibility. The condemnation and political persecution of the judge who sentenced former Stanford University student Brock Turner for sexual assault were illustrative of what some call “carceral feminism.” Regardless of whether or not the sentence was too lenient—and there’s a strong argument that it was—the reflexive political backlash that effectively drove the judge from the criminal bench belies the activist left’s commitment to mass de-incarceration. If judges are afraid of giving less punitive sentences for fear of political reprisal, they are more likely to throw the book at offenders and thus increase the number of incarcerated people.
The reform movement that exists—on either side of the ideological spectrum—seems to be tied directly to a specific type of person: the nonviolent drug offender. Given the draconian mandatory minimum sentences that put away many of those offenders for decades, it is comparatively easier to make an argument for bringing them home and back into society. Consequently, nonviolent drug offenders have benefitted almost exclusively from President Obama’s early-release commutations and are also the primary targeted beneficiaries of many reforms at the federal and state levels. But a majority of American prisoners are incarcerated for violent crimes.[v] The dominant reforms and rhetoric do not recognize that, leaving most offenders unaffected by even the most wide-ranging proposals.
And now we must confront the consequences of the election of Donald Trump as president with Republican majorities in both houses of Congress. President-elect Trump resurrected the dormant “law-and-order” rhetoric of the 1980s and ran with unambiguous zeal for immigration violation crackdowns. A Trump Department of Justice and law enforcement grantmaking may push law enforcement at all levels toward more aggressive policies and tactics.[vi] The hopes of federal reform in the lame duck looked bleak before the election, and nothing from the Trump camp would suggest the next administration will be looking to reduce federal criminal enforcement efforts.
However, this does not mean all hopes for improvement are lost. Professor Teles mentioned the red state reforms that have already been passed in Texas, Georgia, and Mississippi. Part of the reason these reforms are going through is that incarceration is expensive. Economic pressure may keep de-incarceration on the state-level conservative agenda.
Moreover, there have been some gains at the ballot box this year. Particularly, these victories have come at a position oft overlooked in reform politicking: the election and removal of prosecutors.
While the legislatures provide the laws to be enforced, the high level of discretion of prosecutors plays the decisive role in who goes to jail and why.[vii] Although district attorneys’ races can be partisan, prosecutorial reformers won races this year in cities as diverse as Chicago, Houston, Denver, Orlando as well as less populous jurisdictions like Henry County, Georgia and Columbus, Mississippi.[viii] It remains to be seen what impact these new faces will have in their jurisdictions, but their elections show that substantive change is possible.
It is unclear how much of the president-elect’s support is based on his law-and-order rhetoric and how that might play out in cities and towns across the country. Despite the recent move toward reform on left and right, however, there remains the traditional American appetite for what Professor Jonathan Simon dubbed “governing through crime”[ix]—the reflexive response to handling public ills through punitive criminal sanction. This remains in evidence through the mens rea debate, the sustained push for corporate criminal liability, and the continued struggle to tackle “rape culture” on the left, as well as the traditional fight against violent crime, drugs, and terrorism on the right.
Going forward, the core of the carceral problem in the United States may have much less to do with breaching partisan ideology than it does reining in America’s more punitive reflexes.
[i] Literally, no one knows how many federal laws and statutes carry criminal penalty. Another provision included in federal reform legislation was dubbed “count the crimes” to force the federal government to count and list every law that could be prosecuted criminally. In a legal environment that lacks a comprehensive list of offenses, some basic requirement of intent or knowledge ought to be required for criminal prosecution.
[ii] The dearth of real world examples of genuine bad guys getting away for lack of mens rea undermines this fear, but it persists nonetheless. It is also worth noting that civil liability is not affected by a criminal mens rea requirement.
[iii] Sally Q. Yates, “Memorandum: Individual Accountability for Corporate Wrongdoing,” Office of the Deputy Attorney General, pp.2-3, September 9, 2015, available at https://www.justice.gov/dag/file/769036/download.
[iv] See generally, N. Richard Janis, “Deputizing Company Counsel as Agents of the Federal Government,” Cato Institute, July 14, 2008, available at https://www.cato.org/publications/white-paper/deputizing-company-counsel-agents-federal-government.
[vi] Subsidies and other enticements toward increasing local immigration enforcement seem likely, given the hardline immigration stance repeated on the campaign trail.
[vii] See generally, Adam J. Foss, “A prosecutor’s vision for a better justice system,” TEDtalk, February 2016, available at https://www.ted.com/talks/adam_foss_a_prosecutor_s_vision_for_a_better_justice_system#t-259647.
[ix] See generally, Jonathan Simon, Governing Through Crime, Oxford University Press, (Oxford, UK):2007.
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.
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.”
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.