November 2016

It has often been remarked that given its prison population, either the United States is the most evil nation on earth, or something is terribly wrong with its criminal justice and sentencing policies. We hope for the latter of course, and this month we have invited four experts on criminal justice to discuss what we might do to change our policies in this area for the better.

Mass incarceration as an issue faces a strange political landscape, one in which for many years a get-tough attitude seemed to be the only one capable of winning elections. Democrats constantly found themselves playing catch-up to Republicans, and “more” seemed to be the answer to every question regarding imprisonment. All of that may or may not have changed in recent years, with numbers adding up in a frightening manner, and with quite a few right-of-center figures and institutions rethinking criminal justice policy for a variety of reasons. 

The 2016 presidential election will be decided during the course of this issue of Cato Unbound, and it, too, has changed the landscape of criminal justice policy, with the Republican Party re-embracing its formerly unquestioned identity as the party that champions law and order against the perceived forces of social disintegration. Will this new direction last? If it does, what does it mean for the future of criminal justice policy? And if not, where do we go from here?

Joining us this month are Professor Steven M. Teles of Johns Hopkins University, Professor Marie Gottschalk of the University of Pennsylvania, Research Associate Jonathan Blanks of the Cato Institute, and Professor Peter Moskos of the John Jay College of Criminal Justice. We welcome your comments and look forward to a stimulating discussion.

Print entire 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.

Coming Up

Essays by Marie GottschalkJonathan Blanks, and Peter Moskos. Conversation to continue through the end of the month.

Related at Cato

Podcast: “Is Criminal Justice Reform Really Dead?” with Marc Levin, November 1, 2016

Upcoming conference: The State of American Criminal Justice, December 7, 2016

Cato Institute public filings on U.S. criminal justice cases, a project of the Cato Institute