Right-wing operatives have decided that prisons are a lot like schools: hugely expensive, inefficient, and in need of root-and-branch reform. Is this how progress will happen in a hyper-polarized world?
That changed after Nolan got to see prison from the other side of the bars. In 1993, Nolan was indicted on seven counts of corruption—including accusations that he took campaign money to help a phony shrimp-processing business the FBI dreamed up as part of a sting. He ultimately accepted a plea deal and was sentenced to thirty-three months in prison for racketeering. Nolan maintained his innocence, but said he would take the plea to avoid the risk of longer separation from his family. Before he left, Nolan recalls, a friend told him, “View this time as your monastic experience”—a chance to follow generations of Christians who have retreated from daily life to work on their faith. Nolan, who is Catholic, resolved to follow that advice.
While Nolan was locked up, a mutual acquaintance put him in touch with Chuck Colson, the biggest name in prison ministry. Colson, a former Nixon aide, had gone to the clink for Watergate-related crimes and experienced what he described as a religious transformation behind bars. After his release in 1975, Colson founded Prison Fellowship, which provides religious services and counseling to inmates and their families. By the time Colson died this past April, he had become a star in the evangelical community, rubbing shoulders with the likes of Billy Graham, Rick Warren, and James Dobson.
Nolan enrolled his kids in a Prison Fellowship program for children of inmates and began corresponding with Colson. Even before Nolan got out, he had an offer to run the group’s policy arm, which had been languishing.
“I’d really been praying about, ‘Okay, Lord, what’s the next chapter in my life?’” Nolan recalls. “I’d seen so much injustice while I was inside that I felt I really wanted to address that. My eyes had been opened.” Nolan is devoting the rest of his life to opening the eyes of his fellow conservatives, getting them to see the tragic cost of putting so many Americans under lock and key.
When Nolan first arrived in Washington, the only real foothold reformers had in the conservative movement was with a small band of libertarians at places like the Cato Institute and Reason magazine, who objected to the prohibitionist overreach of the drug war but were treated as wildly eccentric by mainstream conservatives. To find allies with unquestioned right-wing credentials, Nolan prospected among two groups with whom he had credibility: evangelicals who admired Prison Fellowship, and his old friends from Young Americans for Freedom, some of them longtime crime warriors themselves.
Colson had already persuaded evangelicals that prisoners were appropriate objects of personal compassion, but had yet to find an angle that would convince the faithful that the criminal justice system was fundamentally flawed. Nolan hit upon two perfect issues in short order.
The Supreme Court opened the first window in 1997 by striking down most of a federal law intended to expand the religious freedoms of prisoners. The specter of wardens putting bars between inmates and God energized social conservatives. Prison Fellowship threw itself into the fight, and a revised law was passed in 2000.
Around the same time, Reagan administration veteran Michael Horowitz was casting about for a cause to show that conservatives have a heart. Previously known for his advocacy on issues like human trafficking and peace in Sudan, Horowitz decided to make protecting the victims of prison rape the next step in what he called his “Wilberforce agenda,” after the famous British evangelical abolitionist.
Prison rape was a natural issue to express conservatives’ humanitarian impulses. Evangelicals who think homosexuality is immoral can easily be persuaded that homosexual rape under the eyes of the state is an official abomination. More importantly, Horowitz had put his finger on a nightmare of massive proportions. Human Rights Watch had gathered evidence suggesting an epidemic of torture to which many wardens were turning a blind eye. Last May, the U.S. Justice Department estimated that more than 209,000 prisoners suffered sexual abuse in 2008 alone.
Horowitz proposed a bill designed to have cross-partisan appeal, with provisions for penalizing lagging states and shaming recalcitrant wardens. Evangelicals were sold right away. “Everyone has basic human rights, even if they are being dealt with and sanctioned for inappropriate social behavior, and prison should not take those away,” the Southern Baptist Ethics and Religious Liberty Commission’s Shannon Royce would explain to the Washington Post.
Horowitz focused on negotiations with a skeptical Justice Department and state corrections officials, while Nolan worked the corridors of the Capitol. The Prison Rape Elimination Act passed both houses of Congress unanimously in 2003.
Nolan then used this big win as a springboard to an issue where the moral lines were more blurred: helping released prisoners adjust to life back home and stay out of trouble by pumping money into “reentry” programs. Republican Congressman (and now Senator) Rob Portman agreed to champion legislation that would become known as the Second Chance Act. President George W. Bush endorsed the idea in his 2004 State of the Union Address, after lobbying by Prison Fellowship and Portman’s office, according to Nolan. Hammering out the bill took several more years, but the Second Chance Act was finally passed with solid conservative backing in 2007.
These measures all had bipartisan support, but they were not the product of centrists: the top Senate backers of the Prison Rape Elimination Act were Ted Kennedy and Alabama’s Jeff Sessions, who spent a dozen years as a tough-as-nails U.S. attorney and is ranked the Senate’s twelfth most conservative member by the National Journal. Liberal reformers did bargain with conservatives behind the scenes—the biggest example was an agreement that the Second Chance Act remain silent on funding faith-based reentry programs. But Nolan’s conservative allies were confident that bipartisan reform efforts brokered by Prison Fellowship would remain consistent with conservative principles, thanks to groundwork laid by the previous religious freedom and prison rape efforts.
Even as the Second Chance Act edged forward, Nolan was tapping old friendships to pull together more conservative dissenters. David Keene—then head of the American Conservative Union, now president of the National Rifle Association—was tracking post-9/11 encroachments on civil liberties and turning a wary eye to criminal justice. Richard Viguerie, a direct mail pioneer in the conservative movement, was a longtime death penalty opponent. Nolan began calling them for advice. Soon, antitax activist Norquist was being looped into the conversations, as was Brian Walsh, a Heritage Foundation analyst who studied the rapid expansion of federal criminal law. The group started holding regular meetings to brainstorm ideas. They toyed with proposing a federal criminal law retrenchment commission similar to the base-closure commission of the 1990s, or pushing congressional judiciary committees to demand jurisdiction over any bills that created new crimes.
Despite all of Nolan’s progress, it soon became obvious that the juice on criminal justice reform would not come from Washington. The real potential lay in the states, where a combination of fiscal conservatism and budget pressure was beginning to crack the status quo. The opportunity to turn those tremors into a full-blown earthquake would come from a very unlikely place.
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