As we all know, being a Republican or a Democrat comes with a particular set of policy positions. Yet partisan policy positions can change over time. Just look at how Donald Trump is redefining GOP orthodoxy on trade and entitlements. This has been happening on other issues since before Trump even entered the 2016 race. Not long ago, for instance, to be a Republican was to be unequivocally “tough on crime” and in favor of policies to “lock ’em up and throw away the key.” But in recent years, Republican governors and legislators in red states such as Georgia, North Carolina, Oklahoma, South Carolina, and Texas have spearheaded and passed reforms aimed at reducing imprisonment through programming that Republicans in another era would have considered “coddling criminals.” In Congress, the Sentencing Reform and Corrections Act, a decarceration bill, has enough bipartisan support that it could conceivably pass before the end of the year. In Prison Break: Why Conservatives Turned Against Mass Incarceration, David Dagan, a PhD candidate, and Steven Teles, an associate professor of political science at Johns Hopkins University, have written the first authoritative account of conservatives’ repudiation of mass incarceration. While it may be too soon to claim, as they do, that “the old get-tough frames” have “all but evaporated,” their explanation for and evidence of a criminal justice reform trend “sweeping across conservative America” is compelling.
Documented through extensive interviews with an impressive cast of Republican politicians, conservative activists, and criminal justice reformers, Prison Break (which began as a feature story, “The Conservative War on Prisons,” in our November/December 2012 issue) is essential reading for those who want to understand how and why “law and order” conservatives came to question the orthodoxy that “prison works” and embrace reform. Dagan and Teles’s explanation centers on the piecemeal and strategic building of relationships between Christian conservatives, elite Republicans, libertarian think tanks, and funders over a twenty-year period. Together, they created, invested in, and disseminated new framings of incarceration as a problem for conservative politicians.
Prison Break is a story about how people change their minds. Partisans can come to see things differently, Dagan and Teles argue, if they are first convinced that the new position doesn’t conflict with their core identities. Key to this process is what Yale professor of law and psychology Dan Kahan calls “identity vouching”: having a respected figure in your political tribe certify that a position is ideologically acceptable. For the conservative prison reform movement, this identity vouching began with Charles Colson, a former Nixon aide and Republican strategist, and Pat Nolan, a former Republican legislator from California. After having born-again experiences while serving time in federal prison, both men became passionate advocates for prison reform. Colson, who went to jail in 1974 for his role in the Watergate scandal, founded Prison Fellowship in 1976. Eighteen years later, Colson recruited Nolan—who himself did time on federal racketeering charges—to the organization. Beginning in the mid-1990s, they slowly began to build a conservative “reform cadre” through their personal networks, including former Republican Congressman Frank Wolf, former George W. Bush speechwriter and Washington Post columnist Michael Gerson, Brown University economist and conservative activist Glenn Loury, and Texas philanthropist Tim Dunn. While their motivation for reform is based in the Christian belief that all people deserve a second chance, they found allies in libertarian-leaning conservatives, such as David Keene, former American Conservative Union president and current Washington Times opinion editor, who see expansive surveillance as a violation of civil liberties. They also drew in a few influential fiscal conservatives, such as anti-tax activist Grover Norquist, who began to view criminal justice as another example of state spending run amok. In 2011, Nolan formed a new elite conservative movement for reform, aptly named “Right on Crime.” In a frequently cited Washington Post op-ed, he and Newt Gingrich called on “conservative legislators to lead the way” in fixing “the astronomical growth in the prison population, with its huge costs in dollars and lost human potential.”
While Gingrich and Nolan were the conservative public anchors of the movement, the nonpartisan Pew Charitable Trusts became its hidden captain. In 2007, Pew, one of the world’s wealthiest charitable foundations, established the Public Safety and Performance Project, with the goal of “protecting public safety, holding offenders accountable, and controlling corrections costs.” Almost “obsessively bipartisan,” Pew provides technocratic expertise to policymakers, but behind the scenes it works to create “political space” for reform by funding and strategizing the dissemination of the conservative prison reform gospel. Adam Gelb, director of Pew’s Public Safety Performance Project, deliberately framed the problem of mass incarceration for state legislators as a lack of “return on investment.” And after helping Texas legislators pass a reform package in 2007, Pew provided platforms and resources for reformers to proselytize the “Texas Model” and launch Right on Crime. Arguably the biggest success of the Pew reform model, the “Justice Reinvestment Initiative” [JRI], is a series of reforms that have passed in Georgia and 32 other states since 2007. The key to Pew and Right on Crime’s success (as measured by the diffusion of the JRI model) was their decision to work with Republican “politicians’ existing preferences, rather than organizing to try to fundamentally change them.” As Dagan and Teles explain,
conservatives have argued for decades that government functions . . . should be judged by “outputs” . . . and that generating results required applying strict accountability measures to generally untrustworthy public servants. . . . The innovation of Right on Crime and its allies is extending this critique to the criminal-justice system.
Along these lines, reformers argue that past support for prison expansion was not consistent with conservative ideology, allowing politicians to embrace reform with their conservative identity intact. The political traction of these framings, however, depended on a changing political environment. Dagan and Teles argue that the decline in crime rates and in the public salience of domestic crime (compared to terrorism) and Democrats’ embrace of tough justice in the 1990s weakened the political purchase of Republicans’ previous hardline position. And a new generation of ideological conservatives deeply hostile to government (even if that government is locking up the bad guys) amplified the political price of continuing to let imprisonment costs soar.
Dagan and Teles recognize that this let-the-conservatives-lead reform strategy could encounter stumbling blocks. For instance, alternatives to incarceration, such as drug treatment, job training, and more intensive parole and probation operations, might not actually save money or, if poorly implemented, reduce recidivism. They are optimistic, however, that the political benefits of staking reform positions and the dynamics of policy diffusion will sustain reform.
For a different assessment of the prospects of reform, readers should look to Marie Gottschalk’s Caught: The Prison State and the Lockdown of American Politics. Gottschalk argues that the current focus on costs is unlikely to create enough momentum for significant decarceration. As I read Prison Break, I too was more doubtful. I couldn’t help but notice the repetition of arguments reformers have used since the mid-twentieth century, such as that “prisons should be reserved for violent offenders,” or that we send people to prison as punishment, not to get “beat up” while there. Furthermore, having mainly spoken to conservatives who have come to believe that sustaining current incarceration policies is not consistent with conservative principles, Dagan and Teles’s interview sample might bias their interpretation. My own research on decarceration efforts in Florida suggests that the new conservative orthodoxy on incarceration has not spread evenly across states. Recent efforts by GOP Senators Tom Cotton and Ted Cruz to block the Sentencing Reform and Corrections Act (Cotton argues that we have too few people locked up, not too many) further suggest that not all conservative elected officials have gotten the memo.
Moreover, as Dagan and Teles allude to, the conservative framing of prison reform creates a real dilemma for liberals. By taking out the progressive moral and humanitarian motivation for reform, the dominant conservative discourse absolves Republicans (and Democrats) of the harm caused by their policy choices, relegating them instead to bad “investments.” Embracing the reform movement, as the NAACP and the ACLU have done, may help reduce the number of people behind bars, but it risks further entrenching an antiregulation and public spending political culture that will tug against enacting policies that proactively address the harm that mass incarceration has wrought on individuals, families, and communities (who are, of course, disproportionately black and brown). Prison Break doesn’t necessarily lay out a path forward, but interested parties of all political stripes will find plenty of fodder for thinking about the positions they might take as the politics of the carceral state shifts beneath our feet.