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?
Perhaps the surest sign that conservatives were embracing the new model came from the American Legislative Exchange Council—the conservative network of state legislators. In the 1990s, ALEC had peddled mandatory minimums, prison privatization, and the like to its members in statehouses across the country. But in 2007, ALEC hired Nolan’s friend Michael Hough to run its criminal justice task force, and Nolan soon persuaded ALEC to endorse the Second Chance Act. Within a few years, the trio of Hough, Nolan, and Madden had brought ALEC to the point of pushing out model bills based on propoals borrowed from Gelb’s criminal justice project at Pew, which has been dispatching teams of sentencing wonks to state capitals around the country to help reformers develop specific plans. All this work was done through the same ALEC committee whose advocacy for “stand-your-ground” laws prompted a backlash in the wake of the Trayvon Martin killing. ALEC announced in April that it would disband the committee, but, in fact, it ended up giving the panel a new mandate. The committee now focuses exclusively on sentencing reform and has dropped all of its unrelated model bills, from mandatory minimums to prison privatization, Hough said.
With conservatives less willing to defend the lock-’em-up status quo, prison reform now seems to have the momentum of an issue whose time has come. States from Kentucky to Pennsylvania to North Carolina have passed bipartisan criminal justice overhauls, preventing thousands of prison commitments. And the wave continues. In May, Georgia Governor Nathan Deal was on the verge of tears at a signing ceremony for legislation designed to keep nonviolent offenders out of prison. When his Ohio counterpart, John Kasich, signed a similar bill in June, he said it would “result in the saving of many, many lives.”
To be sure, the new conservative critique has so far largely overlooked the most glaring problem in American criminal justice—its profound racial skew. African Americans account for some 40 percent of the U.S. prison population, three times their proportion of the general population. The liberal legal scholar Michelle Alexander, whose 2010 book compares mass incarceration with Jim Crow, argues that the system will only be dismantled with a return to 1960s-style movement politics.
But it is also important not to underestimate how much the emerging conservative reform movement can do. For starters, conservatives did step into the terrain of racial justice when they took the lead in 2010 to reduce the disparity in federal sentences for crack and cocaine offenses. And reframing criminal justice in terms of efficacy and cost has already prevented many thousands of unnecessary prison terms.
Moreover, this line of argument can also open the door to more radical critiques. Just listen to Tim Dunn. The conservative Texas oilman declaims that the “purpose of the criminal justice system should be to secure liberty and promote justice between people rather than to enforce the power of the state over the lives of its citizens.” Or take Mark Meckler, co-founder of the Tea Party Patriots. “We’re destroying a significant portion of our own population, especially in the inner cities,” Meckler has written. Meckler and Dunn have appeared on MSNBC to endorse the work of David Kennedy, a liberal criminologist who has criticized the failure of the drug war in inner-city communities. And Meckler vows on his blog, “I’m all in on the fight for criminal justice reform here in the U.S.”
The story of how conservatives began to change their positions on incarceration holds lessons far from the world of prisons. Advocates of policy change, their funders, and well-meaning pundits regularly bemoan the ideological stiffening that bedevils efforts at bipartisan cooperation. The usual answer to hyper-polarization is to somehow rebuild the center. But the power of party activists (especially on the right) to control primary elections and discipline politicians who step out of line is not going to go away anytime soon. The center, it seems, will not hold—in fact, it barely even exists anymore.
The lesson of the slowly changing politics of crime on the right is that policy breakthroughs in our current environment will happen not through “middle-path” coalitions of moderates, but as a result of changes in what strong, ideologically defined partisan activists and politicians come to believe is their own, authentically conservative or liberal position. Conservatives over the last few years haven’t gone “soft.” They’ve changed their minds about what prisons mean. Prisons increasingly stand for big-government waste, and prison guards look more and more like public school teachers.
This shift in meaning on the right happened mainly because of creative, persuasive, long-term work by conservatives themselves. Only advocates with unquestioned ideological bona fides, embedded in organizations known to be core parts of conservative infrastructure, could perform this kind of ideological alchemy. As Yale law professor Dan Kahan has argued, studies and randomized trials are useless in persuading the ideologically committed until such people are convinced that new information is not a threat to their identity. Until then, it goes in one ear and out the other. Only rock-ribbed partisans, not squishy moderates, can successfully engage in this sort of “identity vouching” for previously disregarded facts. Of course, there are limits to how far ideological reinvention can go. As political scientist David Karol has argued, it is unlikely to work when it requires crossing a major, organized member of a party coalition. That’s something environmentalists learned when they tried to encourage evangelicals to break ranks on global warming through the idea of “creation care.” They got their heads handed to them by the main conservative evangelical leaders, who saw the split this would create with energy-producing businesses upon whom Republican depend for support.
But that still leaves plenty of issues on which bipartisanship will be possible—as long as it doesn’t feel like compromise for its own sake. Defense spending, for example, is already being slowly transformed by the newly energized libertarian spirit in the Republican Party. On these matters, liberals are in a bind—while they may dearly long for partners on the right, they can’t call them into being, and getting too close to conservative mavericks may tarnish their vital ideological credentials. In this confusing world where those on the extremes can make change that those in the center cannot, liberals will have to learn that they sometimes gain more when they say less.
Feed the Political AnimalDonate
Washington Monthly depends on donations from readers like you.