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November/December 2012 The Conservative War on Prisons

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?

By David Dagan and Steven M. Teles

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.

David Dagan and Steven M. Teles collaborated on this article. Dagan is a doctoral student in political science at Johns Hopkins University and a freelance journalist. Teles is an associate professor of political science at Johns Hopkins.

Comments

  • Jack Lohman on November 13, 2012 7:37 AM:

    Hey, let's not mess with the private prison operators, like Correctional Institute of America. They are substantial campaign contributors, as are the prison guard unions. Our prison population of 10 times China's is fueled by minimum sentencing and three-strikes laws implemented by these very politicians.

  • P.S. Ruckman, Jr. on November 13, 2012 10:47 AM:

    I offer this post as additional reading re this topic: http://www.pardonpower.com/2010/12/conservative-case-for-pardon-power.html

  • paul on November 13, 2012 11:20 AM:

    This could be a good idea, or it could be a way to push Christianist indoctrination on an even larger percentage of prisoners and parolees. With another plus: gps-equipped ankle bracelets aren't unionized.

  • Ilene Flannery Wells on November 13, 2012 11:21 AM:

    People with serious mental illness make up approximately 5-7% of the US Adult population, yet make up over 20% of the prison population.

    The fact that the plight of the seriously mentally ill was not brought up in this article is very telling.

    Please read the Insanity Offense by Dr. E. Fuller Torrey. We have gone from "warehousing" the most seriously ill with mental illness in state hospitals to letting them rot and be raped in prison in even larger numbers than were so poorly treated in the state hospitals...one million are in lock up in local and county jails, and state and federal prisons, at any given moment. Over 200,000 are homeless.

    Not one mention about the days without end in solitary confinement for not "obeying" orders, while psychotic. Is that compassionate conservatism at work?

  • CanuckPhD on November 13, 2012 12:19 PM:

    Actually, CONservatives, the reason why the crime rate has dropped so much is because of Roe v. Wade. I know you folks are anti-intellectual, but TRY reading the following: http://pricetheory.uchicago.edu/levitt/Papers/DonohueLevittTheImpactOfLegalized2001.pdf. I know if the CONS are moronic enough to actually ban abortion completely, I shall be investing heavily in private prison companies. America's pain, my gain.

  • Johnny Exchange on November 13, 2012 12:37 PM:

    On any given day there are 2.4 million inmates in American jails and prisons. The majority share one thing in common, a substance abuse problem. Nothing will change until we get to the root of how to deal with helping Americans with their addiction and abuse of drugs.

  • TonyT on November 13, 2012 12:39 PM:

    I'm all for reducing prisons. I don't believe the author's anecdotal link between crime rates and the rate of incarceration, there are other factors at play here in addition to some statistical kung-fu. The US is worse than China in locking people up. There are lots of people in prison that have no business being there. I see a prison as a place for verified dangerous people, nothing more.

  • Butch on November 13, 2012 12:56 PM:

    Johnny Exchange - first thing is to recognize that substance abuse/addiction is a medical/behavioral problem that incarceration doesn't do anything to solve. We don't treat alcohol and tobacco (the primary abused substances) that way.

    While people should get jail time and other punishments (fines, loss of drivers license) for endangering others (DUI), simple use should be legal, regulated, and taxed. Use all that tax revenue to boost treatment and palliative options.

  • Perry Jordan on November 13, 2012 1:05 PM:

    This headline is misleading. It's more like the Conservative War FOR Prisons. Private prisons, just like private education is where the money is at. The taxpayer money that is. This ingenious plan of offering more for less, getting you hooked, then raising the price tag has been done plenty of times. I believe it was where the term Pusher came from. It appears that since the public pool has dried up for new products, our "entrepreneurs" have their sites set on the tax dollars raked in. Didn't we test this private prison solution in Pennsylvania where a judge was sentenced to prison for sending kids to private juvenile homes for minor reasons while getting a kickback from the prison industry. Is that what we want? More private prisons, more laws, more people in jail, higher taxes to hold them all, more graft for judges? Naw, I don't think so.

  • jaja on November 13, 2012 3:30 PM:

    WTF. has anyone read THE NEW JIM CROW by Michelle Alexander? Maybe its a race thing. oh wait.... it IS!!!!

  • Tomm Katt on November 13, 2012 5:15 PM:

    This is an effort to privatize prisons. I can say for certain that from 2003 thru 2005 I worked for a security wholesaler that that targeted the hardware supply side because they KNEW that this was the goal.
    Each facility has a budget for millions of dollars to purchase door hardware, locks, and heavy duty (and VERY expensive) detention security devices.
    It must be constantly maintained to meet specifications set during the bid process by the product manufactures AND the wholesalers with access to those specific products. That assures that only the "chosen" suppliers meet the spec and the government must pay the lowest price that meets the requirement. There is ASTRONOMICAL COLLUSION INVOLVED IN THE ENTIRE PROCESS.
    All that is required on the political side is a steady supply of inmates so it is not in the best interest of profitability to offer assistance to those that are desperate enough to commit crimes.
    Since there are a lot more people that smoke weed and get caught than there are pedophiles, which inmates are more profitable?
    Ruining lives, price fixing, and laws that are used to subjugate minorities and the poor are the bread and butter of the GOP. It's an oppressors dream!!!!

  • Soulplumber on November 13, 2012 6:12 PM:

    Brewer wouldn't be Govenor of AZ without private prions backers, OH a new one on the way.
    The State of hate and fear

  • Jason Williams on November 13, 2012 7:50 PM:

    Let us not forget that the right is the biggest beneficiary of these so called "community oriented progs" that serve to "help" the formerly convicted. Also, let's not forget that the "reentry industry" is BIGGGGG MONEY!! This is not reform, it's simply the RELOCATION of justice into the hands of the "community" or more blatantly into the hands of the private sector under the so called guise of reformation when in fact it's the "deformation" of justice. I can hear them now, "Let's continue to profit off of the justice system, but let's do it in such a way where it is instead observed as a good". Ya ok! Hey welcome to the neo-liberal age folks! On a side note, when will criminologist begin to cover this, never??!

  • Marty on November 14, 2012 6:53 AM:

  • Karen Morison on November 14, 2012 9:39 PM:

    Jason Williams: you could nit be more wrong. I'm an expert on those community programs funded by the Feds. They're a creation of the Left, and the money goes to the same types of people who've always gotten social service funds. I guarantee that is correct. I followed those programs (including the authorizing statutes plus appropriations plus exactly who got the funds and what they did with them).

  • Phil on November 15, 2012 12:46 PM:

    This article is encouraging, but a number of the comments that follow it are not.
    The evolution in conservative thought on prison reform does represent real progress. Liberals should at least recognize this, and a not be opposed an idea merely because it comes from the mouth of a conservative.

    Regarding the privatization of prisons, let me take the opportunity to point out to liberal readers that this is a good example of an issue that divides establishment Republicans from libertarian conservatives. The libertarian wing doesn't want government money given to wasteful corporate contracts any more than it wants the government to waste money by direct spending. Opposition to corporate cronyism is a major libertarian theme.

    Libertarians also see the growth of government power manifested by an expansive prison system, the militarization of law enforcement, and ongoing futile drug war as a corrosive force which has eroded our most cherished values of liberty.

    In last week's election, both the GOP establishment and the social conservatives appear to have lost ground. Time will tell whether libertarian Republicans are able to take advantage of that. Meanwhile liberals would be wise to understand the differences between factions on the other side of the political spectrum and not put all conservatives in one basket.

  • jean on November 15, 2012 3:13 PM:

    Could it possibly be the PRIVATIZATION of the prison system that adds to the costs?


    Private Prisons: A Reliable American Growth Industry

    - Seeking Alpha
    seekingalpha.com/.../157536-private-prisons-a-reliable-american-gro...


    Cheney, Gonzales Indicted in Texas Prison Case

    | Fox News
    www.foxnews.com/.../cheney-gonzales-indicted-texas-prison-case/

    Haliberton and Blackwater/XE were such a bargain too right?

  • Southern Beale on November 15, 2012 8:19 PM:

    The view on prisons from my corner of the conservative hellhole (home of Corrections Corporation of America) is this: everything is better/cheaper/shinier/sparklier once it's been privatized.

    End of story.

  • Ed on November 17, 2012 4:55 AM:

    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.

    This probably wasn't the authors intention, but the quote seems to suggest that gay men are most often the perpetrators of male-on-male prison rape. My understanding is that the perpetrators are usually straight or straight-identified.

  • kitten on November 17, 2012 11:34 AM:

    I'll believe there is any serious movement on criminal justice reform when something is done to end the egregious practices of employers asking about past convictions on job applications, and the proliferation of background checks. Asking about past convictions at any time during the hiring process should be banned outright, and background checks should only be required for a small percentage of jobs and then only limited to a certain period of time - say 7 years for felonies and 1 year for misdemeanors - and limited to offenses which directly relate to the job in question. Those websites proliferating of late which let you run background checks on all your neighbors without even getting their express written permission first should also be banned.

    Anyone who is serious about cutting the incarceration rate would start here. As long as a past conviction makes it difficult to find meaningful work, it creates a situation where these people are left with no other option than to return to crime.

    "Reentry" programs aren't good enough. They are little more than excuses for employers to continue to ask "the question", while funnelling ex-convicts into menial low-wage jobs.

  • Jane on November 19, 2012 11:13 AM:

    My son was convicted for an internet crime. He was caught with 'some' child porn on his computer along with a lot of other porn. I was compelled to see the evidence for myself and asked friends from Belgium to look at the exact files they say they found in evidence, and describe them to me, and they were family members inducing youngish (12, 14, 16 years old) to be sexual. It's wrong, totally wrong, but my son had nothing to do with the original crime. He was sentenced to 3 years for two videos they found on his computer. I'm very angry that he is doing time for this. We couldn't afford an attorney so we had no choice but to accept the work of a public defender. In the end it might not have made any difference. The judge said the images they found on his computer would be used against him similarly as if it were a murder scene. Only my son didn't murder anyone, and he didn't even make those images. They said in court that he would be charged for each individual video as if he were the perpetrator in the video, so he was "lucky" to get only 4 years.

    Prison should be a last resort to a non-violent offense. And we have a moral obligation to help these people we incarcerate to learn different skills and behaviors. My son has been in there a year now and I get all the stories first-hand. It's a horrible situation we've created. What's even sadder is that a lot of these people have no clue what to do with their lives when released. We've done NOTHING to help them.

    It's unconscionable in my eyes. I would have never known about this whole setup if this had not happened to us.

  • Jane on November 19, 2012 11:55 AM:

    About the article. I don't believe the conservatives move toward justice or fairness, generally. I'm not sure liberals have the right answers so yeah maybe there needs to be a middle ground, but I don't know. I do know that the current system is a waste. And privatization should not be happening. I really believe, as a society, we have a moral obligation to incorporate programs, educate, teach skills and ways to think differently, because most prisoners end up back into society, right? If we're going to go to the extreme of incarcerating people, we owe this to them and to ourselves, as a society, to rehabilitate people or at least give it our best shot. Rehabilitation should be the first line defense, but absolutely if we imprison people. Maybe I'm being naive or idealistic. Warehousing people is stupid and damaging. And pointless.

  • Bill on November 20, 2012 2:19 AM:

    This article completely misses the fact that the American Legislative Exchange Council stopped lobbying for prison privatization as soon as it no longer had any private prison corporations paying membership fees. That corporate bill mill has only one motivation behind its policies: money.

  • Anonymous on November 22, 2012 4:25 PM:

    I resent the racial material in the article. Except for drug laws (see below) the system is not biased against minorities: they simply offend more often, and they can stop anytime they want. It would help if they stopped listening to the likes of Al Sharpton, who tells them Whitey owes them a free living. That debt was paid in 1964 and it's racist to say it still exists.

    @Johnny Exchange: You're right about one thing -- most US prisoners are in for drugs, a victimless crime that would not be on the books in any civilized country (and all crime and suffering attributed to drugs is caused by the laws against them). Free those people and more than half the problem goes away.

  • Duggan Flanakin on May 10, 2013 10:41 AM:

    The simple fact is that the nation's biggest criminals -- bankers, politicians, and such -- escape not only incarceration but also prosecution. Even worse, they are rewarded for their crimes with huge golden parachutes and bonuses. They laugh at the rest of us as they mock justice and impose burdens on the rest of America. Until Chris Dodd, Barney Frank and Franklin Raines are in prison, I believe that we owe an apology to every person in America behind bars -- and indeed, if our President and Secretary of State can flat out lie about BenGhazi (and so much more) then we should dismantle all of our security apparatus -- especially the Transportation Safety Agency and the Internal Revenue Service -- that has any power over the lives of American citizens.