Prison Break: Why Conservatives Turned Against Mass Incarceration

by David Dagan, Steven M. Teles

American conservatism rose hand-in-hand with the growth of mass incarceration. For decades, conservatives deployed "tough on crime" rhetoric to attack liberals as out-of-touch elitists who coddled criminals while the nation spiraled toward disorder. As a result, conservatives have been the motive force in building our vast prison system. Indeed, expanding the number of Americans under lock and key was long a point of pride for politicians on the right - even as the U.S. prison population eclipsed international records.
Over the last few years, conservatives in Washington, D.C. and in bright-red states like Georgia and Texas, have reversed course, and are now leading the charge to curb prison growth. In Prison Break, David Dagan and Steve Teles explain how this striking turn of events occurred, how it will affect mass incarceration, and what it teaches us about achieving policy breakthroughs in our polarized age. Combining insights from law, sociology, and political science, Teles and Dagan will offer the first comprehensive account of this major political shift. In a challenge to the conventional wisdom, they argue that the fiscal pressures brought on by recession are only a small part of the explanation for the conservatives' shift, over-shadowed by Republicans' increasing anti-statism, the waning efficacy of "tough on crime" politics and the increasing engagement of evangelicals. These forces set the stage for a small cadre of conservative leaders to reframe criminal justice in terms of redeeming wayward souls and rolling back government.
These developments have created the potential to significantly reduce mass incarceration, but only if reformers on both the right and the left play their cards right. As Dagan and Teles stress, there is also a broader lesson in this story about the conditions for cross-party cooperation in our polarized age. Partisan identity, they argue, generally precedes position-taking, and policy breakthroughs are unlikely to come by "reaching across the aisle," promoting "compromise," or appealing to "expert opinion." Instead, change happens when political movements redefine their own orthodoxies for their own reasons. As Dagan and Teles show, outsiders can assist in this process - and they played a crucial role in the case of criminal justice - but they cannot manufacture it. This book will not only reshape our understanding of conservatism and American penal policy, but also force us to reconsider the drivers of policy innovation in the context of American politics.

Genres: Politics, Nonfiction

256 pages, Hardcover

First published June 1, 2016

Reviews

[Frank Stein · Rating 4 out of 5]

This book makes a grand argument about political change by examining one profound and yet unlikely example of it, the Republican party’s shift from a monolithically law-and-order party to one that has recently been at the forefront of many criminal justice reforms. As the authors argue, most political change comes from the ability of individuals to convince the mainstream of their group that a new position is really in line with the group’s core political identity, and in this case to convince conservatives that much of the criminal justice system was just “bureaucrats with guns,” who overrode individual liberty and expanded their budgets, just like other bureaucrats did.

A handful of reliably conservative individuals were able to support this change in political identity, and their personal stories were crucial to it. The most important was Chuck Colson, the former Nixon confidante who ended up serving time after Watergate, and whose born-again experience led him to found the Prison Fellowship for prisoners’ religious rights. Colson’s closest aide, Pat Nolan, was a former Republican leader of the California Legislative Assembly, who was jailed in a questionable bribery prosecution, and who then helped found the Justice Fellowship to advocate with Colson for active crime policy changes. Julia Stewart, a former Cato public affairs director, founded Families Against Mandatory Minimums back in 1991, after her brother Jeff had gotten five years in prison for growing pot in his garage. These groups succeeded in mobilizing the evangelical and libertarian wings of the conservative movement, and in getting big name conservatives like Ed Meese and David Keene to throw in support, against their former allies in prosecutor, sheriff, police, and correction officers’ associations. Although the groups made arguments about high prison costs and fiscal discipline to convince others, they all agreed that the personal costs of prisoners was foremost in their vision.

The money for these conservative pushes came from a handful of powerful foundations, most of them liberal-leaning, who managed to stay in the background so as not to endanger Republian reform. George Soros’s Open Society Foundation, which helped underwrite Michelle Alexander’s far-left critique of criminal justice, The New Jim Crow, in 2010, also created the centerish “Justice Reinvestment Initiative,” which advocated reinvesting prison savings in rehabilitation, and eventually provided model bills and data for state legislators. The Council on State Governments supported their effort and provided more facts and bipartisan committees for state legislators. Most important, however, was the Pew Charitable Trusts, which aimed to support bipartisan but generally left-leaning policy, and which provided almost all the real cash for state-level efforts.

Beyond these individual and group efforts, changing times also explain the Republican Party’s shift on crime. Most importantly, post-1999, public opinion polling showed crime concerns quickly dissipate, almost a decade after crime rates themselves began falling. After September 11, 2001, especially, terrorism almost entirely supplanted crime as a law-and-order issue for the public. At the same time, as states sorted into red and blue, many conservative state Republicans no longer needed the crime issue to attack Democrats, so they could embrace liberal reforms without endangering their seats. One common explanation that does not explain the shift, however, is the post-2008 financial crisis and its effect on state budgets. Despite talk of budget stringency, most of the real criminal justice reforms took place in conservative states where budgets were in solid shape, most importantly in Texas in 2007.

All sides realized that getting Texas to reform would signal to conservatives everywhere that “justice reinvestment” was not a weak-kneed liberal position, but a core conservative value. Jay Madden, an oil and construction businessman and a Republican state legislator, and John Whitmore, a Democratic legislator with tough-on-crime credentials (his family had been robbed at gun point and he had advocated for harsh sentences), first realized they had to head off prison intakes by reforming probation and parole. After Governor Rick Perry vetoed an early version of such reform, the Council on State Government and the Texas Public Policy Foundation, under donor Tim Dunn and lawyer Marc Levin, got into the act and helped pass a an even more radical reformist bill in 2007. Pew and the conservative American Legislative Exchange Council then trumpeted the story and funded Madden and others to travel into other conservative states and advocate for more. Georgia Governor Nathan Deal, a former prosecutor, helped push similar reforms with these groups support in 2012, just as the reform spread to North and South Carolina, Mississippi, and across the South. In Georgia itself, the reforms spread from adult supervision to juvenile justice the next year, to reentry programs the year after that, each shepherded by a Pew and Council on State Governments-funded commission on criminal justice that provided legislators the data they needed on reform. Again and again, state legislators said that, besides seeing trusted leaders back new bills, the next most important thing for convincing them was getting the actual data to show reform could work.

On the federal level, it was mainly Colson and the evangelicals at the Southern Baptist Convention, National Association of Evangelicals, and the Family Research Council, that pushed conservative justice reform, starting with the Prison Rape Elimination Act in 2003, and then the Second Chance Act of 2008. They later organized with people like Congressman Henry Hyde and Jim Sensenbrenner, as well as the Cato Institute and Koch Foundation, to show how “overcriminalization” and reduced “guilty mind” (mens rea) requirements in federal law entrapped many white-collar criminals too, and how asset forfeiture hurt people of all stripes. As of this book’s writing, however, there have been few federal legislative results of these efforts.

Despite the pretense of objective analysis, this book regularly discusses the “danger” of Republicans not going further on crime reforms, and notes with dismay that most of these reforms have only dropped incarceration by a few percentage points, and don’t reduce sentences for violent criminals. Still, the book is an eye-opening look at a strange and sudden transformation, one that few would have predicted just 20 years ago.

[Hugo Salas · Rating 3 out of 5]

US Political gossip. In summary, crime fell and it wasn't as relevant to the public as it was before, so the republican party started applying the small government principles it had applied elsewhere to corrections.

The book argues this change happened because strong right-wing leaders pushed the agenda when conservatives didn't necessarily care much about it.

[Pam · Rating 3 out of 5]

This was a useful explanation of how conservatives came to embrace prison reform. But conservatives have steered away from helping those convicted of violent crimes. And the conditions necessary to bring this about are rare to find. So I didn't necessarily feel inspired!

[Sally Kenney · Rating 4 out of 5]

Breezy and readable policy analysis of conservatives against mass incarceration. Learned a lot

[Dave · Rating 2 out of 5]

Review originally posted at Book of Bogan
I received a review copy of this book from the publisher through NetGalley.

The book is subtitled “Why conservatives turned against mass incarceration” and purports to examine why the right wing of politics have moved away from the concept of being tough on crime, and the mass incarceration of criminals of all shapes, sizes, and colours. (Mostly black)

The problem I had with this book is that I just didn’t buy into its hypothesis. Most of the book is given over to a historical breakdown of the hard-charging, tough-on-crime attitudes which have pervaded politics both in the United States (which this book is focused on), and in Australia as well.

There is a long history in politics – on both sides – of either BEING hard on crime, or being SEEN not to be soft on crime. It is something of a race to the bottom as both sides sling barbs at each other, about how their opponents policies will lead to higher crime rates, etc. The underlying problems which lead to crime however, still remain, and dealing with the consequences of these underlying issues, through incarceration, does not solve the problem, and is nothing more than a feel good issue for the public and the politicians who feel safer. (either in their homes or their political positions)

The reality is that – for either social, or economic reasons, and I suspect mostly the latter – politicians are slowly – according to this book at least – shifting away from this model… I guess. This book talks a lot about politicians talking a lot, but that really seems to be where it’s stuck at the moment. I don’t know what the authors’ politics are, but a lot of this book feels like a promotional puff piece.

Going back to the subtitle, I didn’t come away from the book that there is any significant turn against mass incarceration. I think the conversation is one that we need to have, but I don’t think society is there quite yet. What did this book teach me?

To quote Bob Dylan “You don’t need a weatherman to know which way the wind blows.”

I suspect that it will be political convenience which drives change in politics.