One of the most fascinating developments within
conservatism over the past decade has been the emergence of an active,
robust criminal reform movement. Emerging from both the libertarian arm
of conservatism and the personal experience of conservatives who have
been imprisoned, this movement played a key role in the fight against
mass incarceration.
What will happen to them in the age of Donald Trump?
It's a pressing question, because Attorney
General Jeff Sessions is scaling back police reforms and ramping up the
war on drugs. Even in an era where Trump supporters don shirts reading
"Blue Lives Matter," this is an alarming development.
The last decade saw the rise of an effective
coalition organized around the issue of mass incarceration. Michelle
Alexander's 2010 book, "The New Jim Crow,"
brought the work that scholars and activists had been laboring over for
years to a broader audience. A few years later, the Black Lives Matter
movement merged the fight against mass incarceration with efforts to
combat police brutality.
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That part of the movement, led by black scholars
and activists, largely developed on the political left and slowly
brought mainstream liberals into the fold. At the same time, in what was
often more a parallel than coordinated movement, conservative activists
began working for prison reform. Marc Levin, an attorney from Texas, founded Right on Crime in late 2010,
the central organization for prison reform with a conservative bent.
The organization attracted a slew of high-profile figures, including
Bill Bennett, former drug czar under Ronald Reagan; Newt Gingrich, whose
Contract with America sought to build more state prisons; and Chuck Colson, Nixon-aide-turned-felon who founded a prison ministry and fought for reforms in the justice system.
The conservative prison reform movement, which David Dagan and Steven Teles document in their book "Prison Break: Why Conservatives Turned Against Mass Incarceration,"
benefited from the libertarian moment on the right during the 2010s. It
also dovetailed with conservatives' changing attitudes toward drugs,
which involved both a push for decriminalization and legalization from
the libertarian right, but also the compassionate turn in the response
to the opioid crisis.
The turn toward compassion on the right was less
as a result of the prison reform movement than a changing perception of
who used drugs. The white suburban and rural Americans who became the
face of the opioid crisis found a well of sympathy that did not exist
when conservative politicians perceived black Americans as the primary
users of illicit drugs. Nonetheless, during the 2016 campaign,
Republican candidates expressed an interest in rehabilitation, not
imprisonment, as a response to the opioid crisis. Among them? Donald Trump.
That bipartisan criticism of mass incarceration
and the war on drugs mattered, because for decades there had been a
sharp partisan divide on the issue. In the 1960s, there was a concerted
legal effort to expand the rights of the accused. The Supreme Court held
that people accused of a crime had the right to an attorney and to be
informed of their rights. In the early 1970s the court triggered a brief
moratorium on the death penalty because of its discriminatory effects.
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In an age of "law and order" on the right, these
decisions were seen as a symptom of liberal permissiveness, coddling
criminals in an era when crime rates were sharply escalating. The turn
toward mass incarceration that followed was not driven solely by the
right – Bill Clinton contributed substantially to it in the 1990s – but
the drive for reform was limited to the left, and dismissed as
soft-on-crime liberalism.
That's why the bipartisan consensus mattered so
much. In an era of polarization and tribalism, the emergence of genuine
bipartisanship agreement created an unusual opportunity for reform.
And that's why recent moves by Sessions are so
disheartening. In office only a few months, he is styling himself as a
Reagan-era crime-fighter, looking to double-down on the carceral state.
The Justice Department released a memo last week that signaled its
intent to void consent decrees, the reform plans put in place under the
Obama administration to begin to address problems in particularly
troubled departments. And as The Washington Post reported on Saturday,
Sessions is "eager to bring back the national crime strategy of the
1980s and '90s from the peak of the drug war" – despite the low crime
rate and growing consensus that the war on drugs was bad policy.
For proponents of prison and drug reform, that
means hard years ahead. And conservative reformers will be needed more
than ever, to keep alive the cross-ideological push for a fairer, less
damaging criminal justice system.
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