This column first appeared Sept. 9 on Library of Law and Liberty.
It is not surprising that those at opposite poles of the ideological spectrum generally view public policy issues—and proposed solutions—differently. What is surprising is when conservatives adopt the rhetoric of the Left (along with the accompanying narratives, memes, and canards) regarding a subject as important as criminal justice.
Many “reform conservatives” have done just that, as evidenced by Prison Break, a new book by David Dagan and Steven M. Teles (the latter of whom authored The Rise of the Conservative Legal Movement in 2008). The subtitle of Prison Break—“Why Conservatives Turned Against Mass Incarceration”—gives away the punch line. The change of heart on the part of idealistic reformers is unsupported by data (which I’ll get to below), making it disappointing as well.
Admittedly, I come to this topic as someone whose views were strongly influenced by two disparate sources: exposure to former U.S. Attorney General Ramsey Clark’s wretched screed, Crime in America (1970) as an undergraduate, followed by sociologist Ernest van den Haag’s Punishing Criminals: Concerning a Very Old and Painful Question (1975), a bracing antidote to Clark’s bleeding heart apologia for criminality. My takeaway (then and now): As stated in Federalist 3, public safety is the first priority of government, and a confident, disciplined polity (one not wracked with guilt or self-doubt) recognizes that predators are solely responsible for their actions, and that criminals deserve to be punished. The objectives of deterrence and rehabilitation are purely incidental.
The liberals’ approach to criminal justice and the conservatives’ used to boil down to a clear division between “It’s society’s fault” socio-babble and “Lock them up” toughness. Today, not so much. How and when was the political Rubicon crossed? When did formerly law-and-order conservatives begin channeling Ramsey Clark? That is the subject of Prison Break, a slim, workmanlike account of this public policy shift based on interviews with many of the relevant players.
The modern-day “Right on Crime” movement was formed in an unlikely alliance between conservative organizations such as the Texas Public Policy Foundation and liberal groups including the Soros-funded Open Society Institute and the American Civil Liberties Union. Right on Crime promotes a suite of reforms including de-incarceration of non-violent offenders, expanding alternatives to imprisonment (such as drug treatment and intensive probation), de-criminalizing certain offenses, and softening mandatory sentences. Finding common cause with the Left on criminal justice takes us quite a distance from the era when then-Vice President George H.W. Bush hammered then-Massachusetts Governor Michael Dukakis for being soft on crime, using a crime spree committed by a convicted murderer named Willie Horton while on a prison furlough to overcome a significant polling deficit in the presidential election of 1988.
That distance wasn’t covered overnight. The movement leading up to Right on Crime began with the late Charles Colson’s evangelical conversion after being indicted for crimes he committed as a “hatchet man” in the Nixon White House. In 1976, after he emerged from a stint in federal prison, Colson founded Prison Fellowship, a ministry for offenders, and for the rest of his life he tirelessly promoted rehabilitation and prison reform.
Colson was later joined in this crusade by former Assembly Republican leader Pat Nolan, a wunderkind and rising star in California Republican circles until he was ensnared in an FBI sting operation and spent 25 months in federal prison in the 1990s. Following his release, Nolan, too, devoted himself to prison reform. Like Nixon going to China, Colson and Nolan had the conservative bona fides to make the issue of criminal justice reform respectable on the Right, and they eventually persuaded other conservative leaders (both within and outside the Beltway), especially evangelicals, to join in the cause.
Financed in large part by the centrist Pew Charitable Trusts, the nascent “trans-partisan” reform movement began to gather speed around the turn of the millennium, coinciding with a long, steady decline in national crime rates—and the resulting public complacency about criminal justice issues. The initial cadre of evangelicals grew to include anti-statist libertarians and conservatives, budget-conscious Governors (building and operating prisons are expensive), and reformers galvanized by perceived excesses in the “war on drugs” (especially harsh mandatory minimum sentences).
A public policy “band wagon” ultimately developed, and when it became fashionable to do so, all the usual suspects clamored to get aboard. In 2012, a group of prominent conservative leaders, including Grover Norquist and Newt Gingrich, two former hawks on crime, issued a “Statement of Principles” declaring (among other things) that “an ideal criminal justice system works to reform amenable offenders who will return to society through harnessing the power of families, charities, faith-based groups, and communities.” Kumbaya. In a separate Washington Post op-ed, Nolan and Gingrich announced that “The criminal justice system is broken.”
Prison Break provides the details of this decades-long shift, for the most part objectively, although sometimes with a patronizing tone. However, I must take issue with the authors’ contention that the rise of law-and-order conservatism in the 1960s was tainted by racism, or cynicism, or both. The authors claim that the Republican hard line against criminality was a covert racist appeal to white voters, a subtle re-formulation of “Southern segregationist language.” This is silly, as is the authors’ somewhat inconsistent contention—in an unfortunate lapse into academic jargon—that conservatives’ political rhetoric in the 1960s constituted “a powerful way of reconceptualizing the American class structure.”
In fact, national crime rates exploded in the 1960s (along with campus unrest, anti-war protests, and the emergence of the youth/drug culture), creating a legitimate popular concern about public safety and domestic security, which Republican politicians addressed in a responsible manner. (The national homicide rate doubled between 1960 and 1980, for example.) The fact that crime control was an effective wedge issue for Republicans doesn’t mean that they were wrong or operating with corrupt motives.
While Right on Crime by no means advocates emptying the nation’s prisons, it embraces the rehabilitation of offenders as a goal and eschews punishment as an end in itself. The effects of this reorientation should not be underestimated. It gave impetus to the growing anti-incarceration movement, reflected in California’s passage of Proposition 47 in 2014, and the pending federal Sentencing Reform and Corrections Act—a 180 degree reversal of the stances of conservative politicians going back to Barry Goldwater.
Dagan and Teles report, with apparent approval, that “The notion that the United States unnecessarily incarcerates far too many people is becoming standard conservative fare.” And ironically, if not surprisingly, it was the passage of tough-on-crime measures in response to lawlessness in the 1960s that produced the current “calm” that has enabled the Right on Crime movement.
The sensitivity of crime as a political issue declined during the 1990s, as crime rates sharply fell, but as criminologist Barry Latzer of the City University of New York convincingly documents in his book The Rise and Fall of Violent Crime in America (2016), the change was in response to the adoption of tough criminal justice measures such as increased incarceration of offenders, longer prison sentences, tightened parole, and passage of anti-drug laws. We could easily see a return to the high crime rates of the 1960s and 1970s if those law-and-order measures were reversed or watered down (as some observers contend we are now witnessing with the “Ferguson Effect” in several major cities due to a reduced police presence).
Writing earlier this year in the Wall Street Journal, Latzer noted that many prevailing views regarding “mass incarceration” (some of which are echoed by Right on Crime) are based on factual misperceptions. It is, says Latzer, important to note that imprisonment is driven largely by violent crime—making it no easy matter to simply reduce incarceration. He points out as well that the “mass” in “mass incarceration” is somewhat hyperbolic. Less than one-half of 1 percent of the U.S. population is serving time in prison, according to the Bureau of Justice Statistics. Also the proportion of black Americans who are incarcerated, that is, 1.2 percent of black Americans, is high compared with the proportion of white Americans (0.25 percent) but is not high in absolute terms.
In the years between 1960 and 1990, writes Latzer,
the rate of violent crime in the U.S. surged by over 350%, according to FBI data, the biggest sustained buildup in the country’s history. One major reason was that as crime rose the criminal-justice system caved. Prison commitments fell, as did time served per conviction. For every 1,000 arrests for serious crimes in 1970, 170 defendants went to prison, compared with 261 defendants five years earlier. Murderers released in 1960 had served a median 4.3 years, which wasn’t long to begin with. By 1970 that figure had dropped to 3.5 years.
Thus, he reports, when in the 1990s the crime rate began to go down, the rise in incarceration rates also decreased. And since the mid-2000s “they have been declining steadily, except for a slight uptick in 2013. The estimated 1.5 million prisoners at year-end 2014 is the smallest total prison population in the U.S. since 2005.”
As for America’s prisons being filled with people who committed minor drug offences, Latzer points out that as of the end of 2013, around 208,000 people were in prison for having committed a drug-related crime. He goes on:
Of those, less than a quarter were in for mere possession. The rest were in for trafficking and other crimes. Critics of “mass incarceration” often point to the federal prisons, where half of inmates, or about 96,000 people, are drug offenders. But 99.5% of them are traffickers. The notion that prisons are filled with young pot smokers, harmless victims of aggressive prosecution, is patently false.
The overall picture here is of the experts confirming what one would have concluded from common sense. The crime epidemic of the 1960s and 1970s was caused by leniency in the criminal justice system, and was brought under control by effective tough-on-crime measures adopted in the last two decades of the 20th century. The alternatives to incarceration now being advocated by reformers—such as addiction treatment and enhanced probation and parole—are extremely expensive and of unproven efficacy. Having solved the nation’s crime problem through incarceration, many reform-minded conservatives now propose to adopt the rhetoric and remedies formerly advocated by liberals such as LBJ’s Attorney General, Ramsey Clark. Quis putaret?