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?
“Don’t Mess with Texas” bumper stickers have long found their most extreme confirmation in the state’s criminal justice system. Over the last two decades, Texas has been one of the most avid jailers in the nation. It was home to the largest prison-conditions lawsuit in American history, a thirty-year ordeal that infuriated conservatives and led them to plaster the state with posters calling for the impeachment of Judge William Wayne Justice. And of course, no prison cooks have taken as many last-meal orders as those in the Lone Star State—until officials recently did away with that perk for the condemned. But even as Texas continues to buff its toughest-on-crime reputation, it is also becoming, unexpectedly, a poster child for criminal justice reform.
A handful of liberal organizations have valiantly kept alive the argument for prison reform even through the dark days of the 1980s and ’90s. But most Democrats are still terrified of appearing timid before voters and can be persuaded to go along if the right gives them cover.
It started in 2005, when Tom Craddick, the first Republican speaker of the state legislature in more than a century, appointed Jerry Madden, a conservative from Plano, to run the House Committee on Corrections. As Madden recalls, the speaker’s charge to him was clear: “Don’t build new prisons. They cost too much.”
Madden was a corrections novice with a disarming, aw-shucks manner; his Senate counterpart, Democrat John Whitmire, was an old hand whose resume included being robbed at gunpoint in his garage. The greenhorn and the veteran soon agreed on what ailed the Texas criminal justice system: it was feeding on itself. Too many people flunked probation and went into prison. And too many prisoners committed new offenses shortly after being released, landing them back behind bars. To tackle the first problem, Madden and Whitmire suggested cutting loose veteran probationers who had proved reliable, thus allowing officers to focus their time on people at higher risk of screwing up. The legislature signed off, but Governor Rick Perry vetoed the bill.
At the start of the 2007 legislative session, legislative analysts predicted that Texas was on track to be short 17,700 prison beds by 2012 because of its growing inmate population. The Texas Department of Criminal Justice’s response was to ask legislators to build three new prisons, but Madden and Whitmire had other ideas. Not only did they bring back a revamped version of their probation proposal—they also took aim at the revolving-door problem by cranking up funding for programs such as in-prison addiction treatment and halfway houses. This time, Perry relented (persuaded at least in part, the duo contends, by a high-stakes meeting they held with him shortly before the opening of the legislative session). Since then, the prison population has not increased, and last year, the TDCJ closed a prison for the first time in decades.
Budget shortfalls do not explain this shift. In 2007 Texas was basking in a huge projected surplus, and the Great Recession was still a year away. Instead, Madden and Whitmire had different winds at their backs. For one thing, the policy context favored reform. One legacy of the state’s prison litigation trauma is that Texas has strict restrictions on overcrowding (unlike, say, California). Under Texas law, when the system approaches capacity, corrections staff must seek certification from the attorney general and the governor to incarcerate more prisoners. The approval process forces state leaders to confront the choice between more prisons and more diversion programming. The political environment had also changed since the GOP completed its takeover of state politics in 2003. As a longtime observer of the state’s criminal justice notes, “Now all the tough guys are Republicans. They don’t want to be outdoing each other on this stuff.”
Texas was not the first state to experiment with common sense. Several others had begun tinkering with their criminal justice systems in the wake of the 2001 recession. When the fiscal belt tightened on a swelling inmate population in New York, for example, corrections officials prevailed upon then Governor George Pataki to take steps leading to earlier releases. But none of these initiatives reverberated like the Texas reforms.
The Texas turnaround created a golden opportunity to rebrand prison reform nationally. “People think if Texas does something, by definition it’s not going to be soft,” said Adam Gelb, director of a criminal justice initiative at the Pew Charitable Trusts. “There’s just this instant, deep credibility on the crime issue for Texas.” In 2005, the Texas Public Policy Foundation (TPPF)—the state’s premier conservative think tank—hired Marc Levin to become its first-ever crime wonk. The position was financed by Tim Dunn—a deeply conservative oilman, Republican donor, and Colson-inspired critic of the criminal justice system. Levin promptly threw himself into the Texas debates of 2005 and 2007, but his biggest contribution came later in building momentum for prison reform among conservatives across the country.
The TPPF is one of the most prominent members of the State Policy Network, which connects free-market think tanks in every state. Founded in 1992, the Arlington-based SPN zaps ideas—like Wisconsin-style restrictions on public employee pensions—from one member organization to another. Levin was and remains the only full-time crime analyst at any SPN member organization. As a result, he quickly became the go-to guy on the issue among state-level conservatives, fielding calls from curious colleagues, cowriting editorials and policy briefs, and making presentations at conservative conferences. Eventually, he decided to convert the effort into a formal campaign he called Right on Crime.
When Nolan heard about Right on Crime, he contacted Levin to offer his support—and his Rolodex. Nolan rounded up the members of his informal working group and other conservative luminaries to endorse a revised approach to crime control. Among the signatories: Keene, Viguerie, Gingrich, former Attorney General Ed Meese, and former drug czars Asa Hutchinson and Bill Bennett. Political scientist and long-time prison proponent John DiIulio is there, too, as is Grover Norquist. The Family Research Council’s Tony Perkins and other social conservatives also signed on. Right on Crime backers say explicitly that their goal was to lend their reputations to the effort and give conservatives political cover to launch reforms. “We wanted to create an atmosphere in which, amongst conservatives, there would be total legitimacy,” Nolan said.
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