Conservatism

Conservatives Against Incarceration

How criminal justice reform found support on the right-and what it will take to push it further

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Prison Break: Why Conservatives Turned Against Mass Incarceration, by David Dagan and Steven M. Teles, Oxford University Press, 240 pages, $29.95

Only recently have scholars taken a sustained interest in the 20th century construction of the "carceral state," the instruments and political logic by which the United States became the global leader in imprisonment. In Prison Break, David Dagan and Steven M. Teles, a pair of political scientists based at Johns Hopkins University, offer an elegant account of a related story: the conservative pivot away from prison.

Given the role that law-and-order Republicans played in forging the punishment apparatus in the first place, the story told by Dagan and Teles is as surprising as it is important. Since most criminal law is written by the states, most offenders convicted of a crime go to a state prison. As of now, Republicans boast almost twice as many governors as Democrats; in 23 states, they control both the statehouse and the executive. If the carceral state is to be dismantled, Republicans will have to supply not just the workhorses but much of the leadership as well.

The central insight of Prison Break is that Republican criminal justice reformers do not accomplish their task by parroting progressive views or renouncing cherished ideas. Instead they adopt what Dagan and Teles describe as an "indigenous" language, fashioning an authentically conservative critique of mass incarceration. The authors pay particular attention to a process they call identity vouching: a willingness to entertain unorthodox ideas when a well-credentialed and highly trusted leader or organization espouses them.

Identity vouching helps explaining all manner of reforms, from support for gay marriage to action on climate change. But it is particularly well-suited to the elite group of conservatives converted—sometimes as part of an actual Christian conversion—to oppose the politics of mass incarceration. Dagan and Teles recount the stories of two Republican insiders, Pat Nolan and Charlie Colson, both of whom served time behind bars and, as a result, offered powerful testimonials on the dismal choices prisoners confront. Colson, known as President Nixon's "hatchet man" and convicted for his role in the Watergate crimes, founded the organization Prison Fellowship after his release in 1976, and he used this platform to perform outreach to prisoners and their families as well as mount criticisms of the "lock 'em and leave 'em" approach to criminal justice. Two decades later, Nolan joined Colson's group after his own stint in federal prison, and with him came renewed focus on legislative advocacy and conservative reform.

Prison Fellowship and its affiliated work was a lonely ministry until Tea Party activism endowed the party with a more stridently ideological tenor, opening the door to a critique of the prison-industrial complex that resonated with the movement's appraisal of government performance in other areas. By "creating a climate of permanent austerity in the states," Dagan and Teles write, Tea Party activists made the "GOP's long time exemption [from fiscal review] for police and prisons ideologically and fiscally untenable." Republicans who "established increasing levels of incarceration as a problem" now positioned themselves as more conservative than others, not less.

Oxford University Press

The authors devote much attention to Texas' pioneering efforts, which began in 2007, and Georgia's more ambitious reforms, which started in 2011. After these states lent their conservative imprimatur to criminal justice reform, South Carolina, North Carolina, Mississippi, and Ohio followed with substantial legislative packages. In general, the new laws entailed lower penalties for nonviolent crimes, non-carceral sanctions for parole and probation violations, drug court diversion, credits given for good behavior in prison that applied for early release, or a rollback of "truth in sentencing" laws. With no great fanfare, against the run of the recent past and in the face of pressures from within their own party, red states have emerged as leaders in criminal justice reform.

These changes were driven not just by lawmakers pursuing savings but by technocrats at nonprofits, who worked diligently–and quietly–to supply reformers with information and expertise. As conservative leaders in Georgia and Texas leveraged their reputations, the Pew Charitable Trusts and the Justice Reinvestment Initiative hosted briefing sessions to counsel skeptics that prison was, in essence, a poor investment: a costly endeavor that often failed to enhance public safety.

And yet the story is not simply one of persuasion. The book's subtitle promises to tell us Why Conservatives Turned Against Mass Incarceration, but in fact we learn much more about "how" than "why." Absent other factors, the same activism from the same influential conservatives would have amounted only to speaking engagements and ornamental change. Though the authors treat as secondary the burdens of incarceration—how much prisons cost, how much they fail—these brutal and recurring facts feature prominently as motives for the conservative lawmakers who guided reform. Willie Horton–style scare ads might win elections, but they carried extensive (and expensive) implications. Over the last decade, Republicans discovered that prison was good politics but bad policy.

This raises the question of "interest," a fundamental preoccupation of political science famously examined in James Madison's Federalist No. 10, a treatise on factions motivated by shared concern. In a delicate brush, Dagan and Teles group various traditional incentives under the rubric of fortunata, a term they borrow from Machiavelli. Fortune could be good; it could be bad. Either one presents opportunities for reform.

This casual treatment of interest as merely background for their story exonerates decades of deliberately targeted incarceration via the war on drugs. To be clear, Dagan and Teles do review the racial bias in incarceration at the outset of their book. But in failing to give adequate attention to interest, they miss a tectonic plate shift that structures much of their story: the boom in rural drug use that has incarcerated tens of thousands of red-state and red-county offenders. Between 2000 and 2009, rates of incarceration for African Americans dropped precipitously, while rates for whites, especially white women, increased dramatically—most likely, according to the Sentencing Project, as the result of the mandatory sentences for methamphetamine possession and trafficking. Since then, the rise in rural heroin use has only accelerated these trends. Laws that conservatives designed to target others register differently when they wreak havoc at home. It is only natural that red-state drug problems have triggered red-state criminal justice reforms.

When Dagan and Teles omit these facts from their story, they unintentionally reinforce a narrative that positions people of color as criminals and whites as law-abiding citizens who adjudicate their fate. This oversight is particularly remarkable in light of the fact that two of their conservative protagonists came to criminal justice activism because of the time they served in prison. By confining discussion of white criminality to anecdotes and elites, Dagan and Teles convey a sense that it is exceptional.

Instead, the churning state apparatus of the drug war has helped to narrow the racial disparities of mass incarceration by assuming a posture more egalitarian in punishment, not more judicious in application. In fact, the drug war–fueled carceral state is incapable of such discretion. The United States government is addicted to the drug war. Although Dagan and Teles describe a number of material interests at stake in mass incarceration—prison guard unions, prosecutors, law enforcement, bail bondsmen—the authors do not give due consideration to the many ways in which state power itself relies on the drug war to execute daily tasks, from policing the inner city to exercising influence throughout the developing world. Drug prohibition is a blunt instrument, brandished by a behemoth.

Without an understanding of how deeply vested the state is in the drug war, criminal justice reformers of all stripes will preoccupy themselves with transactional instead of transformational change. Conservatives will encourage the proliferation of faith-based groups to help ex-offenders adjust to civilian life (another "interest" that receives only glancing recognition from Dagan and Teles); liberals will call for more investment in underserved communities. Both represent worthwhile ambitions. But who will rethink the drug war itself?

Some conservatives are now joining other politicians in tepid or fitful support for the decriminalization of illicit drug possession. Such efforts are valuable, but they do nothing to disrupt rampant criminal drug markets. Even the best intentions, guided by our best talent, will fall short in the face of the prohibition of illicit substances and the violent crimes that follow in prohibition's wake.

It will take much more than a well-placed cadre of political insiders to redirect the tidal scale of the war on drugs. It will require oppositional as well as establishment politics, for in this fight, the government, a necessary agent of change, is also the principal obstacle to it.

Fortunata only goes so far.

NEXT: Gary Johnson Lands Newspaper Endorsement in Virginia

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  1. Obama and Holder did more to end the drug war than all the other presidents combined. Hillary will maintain the status quo and tee-totaler Trump will drastically ramp up the drug war as promised: “The heroin is pouring over the border. We gotta build the wall, folks.”

    Incarceration fell as people realized the criminals are not the super-predators we were told to fear. (This type of language came not just from Hillary but from all fronts.) The fear mongering bullies have been discredited. Now, BLM refuses to lay themselves down upon the altar of their parents’ career ambitions. Of course, some still do.

    1. what did either do to end it? I recall Holder at least firing warning shots at both CO and WA State after their respective decisions on pot. Young blacks are still killing other young blacks and the left – Obama included – remains fixated on guns. And BLM arose under this administration, concentrated largely in cities that have been Blue for decades.

      1. Don’t smoke so much, it can affect your memory.

        1. What did they do? Actually do. This article points to state govts taking action, not the feds.

            1. so they talked. Got it. As to CO and WA, how nice of them to “allow” those states to proceed. And I’ll remind you that Holder was not so gracious after the votes.

              Lots of talk. Not a single piece of any lawmaking introduced anywhere at the federal level, not even the kind meant to embarrass Repubs.

              1. And what have you done to end the drug war, wareagle? I mean, other than complain that others are ‘all talk’.

                1. Is that supposed to be more evidence that Obama and Holder did anything, or have you given up on that lie and gone straight to fallacies?

                  1. Like I said, Obama and Holder did more to end the drug war than all the other presidents combined. And Trump will only escalate it. And you people are all talk.

                2. Really? So me, private citizen, is held to a higher standard than the President and AG, who have actual influence? Let me know when you have an actual argument.

                  1. Keep talking. Meanwhile, Obama will continue to end the drug war. And the ‘conservatives’ will do nothing as Rand Paul and Cory Booker introduce legislation which the president will gladly sign if it gets passed – the way the government works. OK now rally for ‘pen and telephone diplomacy’ even as you criticize it:

                    1. “Obama will continue to end the drug war”

                      Why do you continue to avoid showing how?

                      You think posting more will make people ignore that you keep saying it, and showing nothing?

                    2. And he granted clemency to more victims of the drug war than all other presidents combined, and he argues against mandatory minimums and now it’s up to the states’ ‘conservatives’ to actually do something AND you’ve provided no evidence that he’s done nothing despite mountains of evidence to the contrary:

                    3. Still not showing anything.

                    4. “We’re very concerned,” said Steve Cook, president of the National Association of Assistant U.S. Attorneys. “What is happening is he’s undoing a lot of the work we’ve spent the last two-and-a-half to three decades doing.”

                      In the last few rounds of commutations, Cook said one inmate was the leader of a drug ring that trafficked in over 10 tons of cocaine, six had previously been convicted of being drug kingpins and another had been convicted of possessing a sawed off shot gun.

                      Obama’s use of clemency power sparks criticism

                    5. Billionaire New York developer Donald Trump said the nation’s drug enforcement effort is “a joke” and repeated his call for the legalization of drugs Friday during the luncheon held by the Miami Herald.

                      “We’re losing badly the war on drugs,” Trump said. “You have to legalize drugs to win that war. you have to take the profit away from these drug czars.”

                      Donald Trump: Legalize Drugs

                      If talk = action, then Trump has your boy beat by a country mile.

                    6. Clemency, huh? You mean terminating sentences (not immediately in most cases, BTW) at the end of Obama’s second term?

                      How brave of Obama. /s

                      Obama will go as one of the worst Presidents- ever. He chose this path and will deserve to be on the list.

                      Someday the People will wake up and realize that Democrats are slavers, imprisoners, civil rights takers, power having, money stealing… pretty much a criminal syndicate.

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    3. I think it more likely Trump will revert to the legaliz’n line he gave for so many years.

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    5. State and congressional reforms cut prison rates, O just signed it.The Clinton machine requires serious cash for pardons and clemency. Hilary is the one spouting off about ‘super predators’. BLM are just rent a mobs paid for by Soros, they will vaporize like OWS did when the paychecks stop.

  2. “The conservatives you put here with us – did impose austerity upon them forcing them into a life of crime.”

    “The liberals you put here with us – did allow them to commit crimes without retribution, escalating unto chaos.”

    1. “The AddictionMyth you put here with us- didn’t take the meds it needs and is now incoherently bleating again”

      1. Well, thanks at least for demonstrating the mental illness bullying that allowed you to get away with it for so long. OK now proceed to “ignorant” and “in denial” and if that fails there’s always “INFIDEL!“:

        1. “Well, thanks at least for demonstrating the mental illness bullying”

          Am I supposed to be cowed by that? Do you really think that vapid stupidity is going to prevent me from pointing out the obvious? Where do you think you are? Who do you think you’re talking to?

          All you did there was admit that A) you are mentally ill and B) rather than accept that, you attack people who point it out.

          Take those meds man. It’s for your own good.

          1. “Stupid” – that’s good. And “You’re off your meds again” variation. Great work, “Reality”. Nice name, btw. Love the irony. Anyway, proceed to demonstrate the bullying that allowed you to get away with denying the simple truth for so long, and best for everyone else to stand back and say nothing as it happens, for protecting us from the ‘bad guys’ is how Hitlers and Trumps get elected:

            1. I’ll let you continue to argue that my concern for your mental health is bullying.

              I expect you’ll get far with it.

              1. Obviously you have no concern for people’s mental health except to the extent you can use it to justify mass incarceration. The war’s ending, thanks in large part to Obama’s efforts (even if he didn’t pretend to be Congress and write his own laws to ’embarrass’ them) and you lost. Sorry. Move on.

                1. And now you’re rejecting my concern, and claiming I have ulterior motives.

                  But you think I’m the bully.

                  1. LOL. Obviously you’re a Trumpkin using Soviet-era mental illness bullying. You hate Obama because he’s ending the drug war which makes Trump look bad in promising to ramp it back up. But hey, why not give it another shot, call me ‘crazy’ again and then say it’s because you really care about me:

                    1. You’re crazier than a shit house rat, dumber than Rose Kennedy after the lobotomy, a lying piece of shit, and I couldn’t care less if you stepped in front of train. So there you go. Drugs are still illegal, drug sentencing has not been reformed at the federal level, and Obama didn’t do jack shit to change that. You can shoot up H ’til you’re Phillip Seymour Hoffman (please, oh please) and that’s not still going to change reality to fit your lies.

  3. Can we just go straight to the desired state of when no one actually goes to prison for a crime, but instead they go on a secret list that strips them of all their guaranteed rights, forever? ! LIBERTARIAN MOMENT!

  4. I think I’ve laid out my opinions about incarcer’n here before, but why not repeat myself, huh? I can see a few purposes for incarceration: restraint, punishment (which for present purposes I’ll combine deterrence w, because it’s only deterrent for being displeasing), & rehab. I think there’s some value to incarcer’n as restraint, but only for acutely agitated individuals?never more than 90 days anticipated in advance. I could see indefinitely renewing up to 90 days at a time based on judging the person still too dangerous to be at large. However, if the person is believed to be a long-term danger, there are probably better means of restraint than incarcer’n. Otherwise in most cases a week or so should be enough.

    Punishment I think incarcer’n is very inefficient at. If you want to hurt somebody, there are probably much cheaper & more consistent ways to do it, such as by inflicting pain directly.

    Incarcer’n is absolutely terrible at rehab, plus I don’t think rehab is really a suitable goal for criminal justice.

  5. As usual, I find myself on neither side. I’m against the mass incarceration of drug users, of people unable to pay the kind of petty fines local governments now run on, and of anyone who ‘interferes’ with a police site by taking pictures. I am, OTOH, in favor of the mass incarceration of crooked cops of all kinds, fraudulent forensics ‘experts’, prosecuting attorneys who withhold evidence from the defense, and politicians who flout the law like Hillary Clinton or Ted Kennedy. I also wouldn’t mind seeing anyone who ‘protests’ by setting fire to something larger than, say, a cigar without first getting a fire permit thrown in jail, along with the kind of idiot who throws ‘symbolic’ substances like blood or paint.

    1. As long as you’ve paid for it and you’re careful to set it where it won’t spread, light up anything you want. Burning other people’s property is arson and should be prosecuted as such. Setting a fire where it might spread is a clear case of endangering others by negligence. Otherwise, burn, baby, burn. And throwing noxious substances on other people is clearly a case of battery. So, just for fun, let’s let the vegans throw their red paint on some leather-clad Hell’s Angels. Won’t that be fun?

  6. Man, the new season of Prison Break has gotten pretty big picture

  7. Is this review saying that the authors are implying that rural meth-heads & meth-makers are reliable conservative voters?

    1. White trash = Republican. It is known.

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  9. Willie Horton?style scare ads might win elections, but they carried extensive (and expensive) implications.

    Yeah, convicted murderers who kill, rape and steal after they’ve been let out of prison just can’t catch a break in America’s justice system.

    If Willie motherfucking Horton is the best example you can come up with for sentencing reform you should consider abandoning the project.

    Laws that conservatives designed to target others register differently when they wreak havoc at home.

    Ahh, yes, of course, it was the racism what done it.

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  11. Mass incarceration has taken its toll on our country’s finances and morale. It isn’t just about the person in prison — it is also about their families as well. Let me share the story of Lenny Singleton.

    Lenny committed a series of “grab & dash” robberies in one week while high on alcohol & crack. He robbed less than $550 & no one was murdered or even physically injured. No one claimed to be a “victim.” He did not have a gun. He was a first time felon w/ a college degree who served in our Navy before his addiction. The judge, w/o any explanation to the courtroom, sentenced Lenny to more time than rapists, child molesters, & murderers — 2 Life Sentences + 100 yrs. He is sentenced to die in prison while murderers walk free.

    Lenny has been in prison for over 21 yrs. During his entire time in prison he has never been in trouble for anything – rare for lifers. In his spare time, he has co-authored a book to help others called, “Love Conquers All.”

    To keep Lenny incarcerated for the rest of his life will cost taxpayers well over a million dollars. That money would be better spent on rehabilitation services, preventative education or rebuilding infrastructures.

    Lenny’s case is possibly one of the worst in the country illustrating sentencing disparity. It ran on the front pg of The NY Times on July 4th, 2016, http://nyti.ms/29ik8sY

    Please learn more & sign Lenny Singleton’s petition at http://www.justice4lenny.org.

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