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Are Conservatives Really Ready for Comprehensive Criminal Justice Reform?

A new book advances the increasingly popular idea that conservatives are abandoning their tough-on-crime orthodoxy. Sadly, it’s a myth.

By Jordan Michael Smith


The moon rises behind the U.S.-Mexico border fence as citizen volunteers carry out nightly patrols in search of illegal border crossers from Mexico on July 20, 2005, near Campo, California in eastern San Diego County. (Photo: David McNew/Getty Images)

Early this April, a Gallup poll found that Americans are more concerned about crime than they have been in the last 15 years. Time magazine noted that this heightened worry has accompanied plummeting crime rates; cities, once so dangerous that they were routinely compared to lawless jungles, are safer than they have been in decades. This is a traditional paradox. As Ryan King, a professor of sociology at Ohio State University, told Time last month: “Historically, there’s a very weak relationship between actual crime and fear of crime.”

Around this time, Donald Trump solidified his status as the presumptive Republican nominee for president. Trump’s campaign was launched and defined by his attack on Mexicans who enter illegally into the United States. Said Trump when he announced his run: “They’re bringing drugs. They’re bringing crime. They’re rapists.” In fact, immigrants, including those who arrived illegally, commit crimes and are imprisoned at much lower rates than native-born Americans. And yet Trump’s promise to build a wall along the Mexican-U.S. border to solve a ginned-up problem would fuel his success in Republican primaries.

Consensus along the political spectrum for comprehensive criminal justice reform is far more fragile than Dagan and Teles suggest.

These are the types of developments that you’d want to read about in Prison Break: Why Conservatives Turned Against Mass Incarceration, a new book by Steven Teles and David Dagan of Johns Hopkins’ department of political science. Dagan and Teles have written a thoughtful book that traces the decline in favor of so-called “tough-on-crime” positions among conservatives. They convincingly argue that right-wingers have turned against mass incarceration for reasons beyond the exorbitant costs of locking up and monitoring people in record numbers. Instead, a number of factors, including shifting demographics, lower crime rates, and religious convictions, have combined to persuade conservatives that there are simply too many Americans in prisons.

But Prison Break gives conservatives an undeserved break: It takes conservatives’ claims about their conversions too credulously. The conservative movement that was once so eager to imprison huge swaths of Americans — particularly low-income African Americans — has simply not engaged in a tough look at the evidence and soberly recognized that their former positions were wrong-headed. The depressing but inescapable conclusion is that consensus along the political spectrum for comprehensive criminal justice reform is far more fragile than Dagan and Teles suggest.

Prison Break begins with a short summary of the political and ideological trajectory of Newt Gingrich. As a Georgia Congressman in 1986, the future Republican House Speaker circulated a memorandum calling for a “decisive, all-out effort to destroy the underground drug empire.” Gingrich claimed that the war on drugs had to be a total war, with all resources directed toward victory. As an advisor to 1988 Republican presidential candidate George Bush, Gingrich leveled the spurious charge that Democratic nominee Michael Dukakis possessed “a kind of attitude on crime which puts the innocent at risk and which favors the criminal.” Gingrich’s “Contract With America” promised to re-distribute funds from social services to prison construction and law enforcement.

But by 2011, Gingrich had reversed course. Now he was claiming that “there is an urgent need to address the astronomical growth in the prison population, with its huge cross in dollars and lost human potential.” He declared that “the criminal justice system is broken, and conservatives must lead the way in fixing it.”


Prison Break: Why Conservatives Turned Against Mass Incarceration. (Photo: Oxford University Press)

Later in the book, Dagan and Teles quote Gingrich as attributing his change in attitude to several factors: his realization that the justice system was infected with racial bias, the success of Texas in reforming its draconian laws while maintaining low crime rates, and the efforts of faith-based advocates like Nixon White House lawyer-turned-Evangelical Christian leader Chuck Colson.

There are, however, reasons to be skeptical of this account of Gingrich’s transformation. First, he has not jettisoned appeals to racism; soon before Gingrich lamented that “race has an enormous impact on decision after decision” in the justice system, he declared that “only if you understand Kenyan, anti-colonial behavior, can you begin to piece together” the worldview of President Barack Obama. The month before, he had compared a proposed Islamic Center near Grand Zero to Nazis erecting a swastika near the Holocaust Museum. In 2007, Gingrich said that teaching bilingual education was teaching “the language of living in a ghetto.”

Lest it be thought that 2011 marked Gingrich’s racial enlightenment, in 2012 he said that the “African-American community should demand paychecks and not be satisfied with food stamps.” That was months after he called Obama the “food stamp president.” Gingrich, not incidentally, was an early supporter of Trump, who has brought racist rhetoric to the foreground of American public life as nobody else since George Wallace in 1968.

One explanation Prison Break offers for the trajectory of conservatives like Gingrich is a growing anti-statism. “Conservatives once treated prisons as exempt from their critique of big government,” the authors write. “Tea Party-inspired Republicans, by creating a climate of permanent austerity in the states that they control, made the GOP’s longtime exemption for police and prisons ideologically and fiscally untenable.”

By re-defining a massive incarceration complex as overreaching government programs, conservatives changed positions while maintaining their view of themselves as committed conservatives.

Although it aims to account for the change in attitudes toward crime among conservatives as a whole, Prison Break focuses on a few intellectuals and party leaders. Along with Colson, there is Pat Nolan, a California legislator imprisoned for racketeering; David Keene, a onetime president of the National Rifle Association; and libertarian activist Marc Levin. Because these men (and most of the book’s characters are men) are all so influential in the conservative movement, they play an outsized role in policy circles; Dagan and Teles perceptively note that Colton was influential in part because his right-wing credentials in areas such as abortion and taxation were indisputable.

In illustrating how Texas and Georgia experimented with sentencing reform, the authors show how those legislatures led the way for other states, and the federal government, to follow suit. After all, conservatives reasoned, if those two solidly punitive states could loosen their crime laws, surely others could do so safely — the conservative reputation of those states opened political space for policymakers from less solidly red states to re-think their policies on crimes. Indeed, the most interesting parts of Prison Break deal with the way ideas are transmitted from thinkers to leaders and leaders to thinkers; the book presents an interesting synopsis of research demonstrating the way fresh thinking can be adopted by political movements. By re-defining a massive incarceration complex as overreaching government programs, conservatives changed positions while maintaining their view of themselves as committed conservatives.

Ultimately, however, Prison Break overstates the principled nature of conservatives’ evolution on the issue; right-wingers could switch back to harsh positions on crime just as swiftly as they abandoned them. “Conservatives were punitive because it worked politically and because they believed that it was consistent with movement principles,” it reads. “As crime declined, the issue lost salience among the public and ceased to be a cornerstone of Republican electoral strategy.” What this means is that if crime rises again, so too will conservatives’ affection for imprisoning huge numbers of people. High-profile demonstrations and riots in cities like Ferguson, Missouri, and Baltimore should caution anyone from thinking Americans’ anxiety about crime will inevitably decline.

The Black Lives Matter movement is now targeting police departments nationwide with calls for reform, and this apparent “war on cops” is an issue tailor-made to be exploited by conservatives; Trump has taken the side of law enforcement, and next month a new book is being released by the Manhattan Institute’s Heather Mac Donald, the leading conservative intellectual focusing on crime. Its title is The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe. The authors concede that the controversy around police brutality threatens the newfound conservative fondness for criminal justice reform, but they underplay its significance and lamely assert that “BLM’s targeting of police unions may well resonate with conservatives.” It is hard to find a kind word for BLM on the lips of any conservative, and that is unlikely to change, whether the group is anti-union or not.

The present opposition to hardline crime positions among some conservatives may prove to be only a brief break.