Features

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

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.

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.