David Dagan and Steven M. Teles have a great, 5K+ word story about changing movement conservative attitudes against prisons in the recent issue of the Washington Monthly. I've worried that the changing narrative about conservatives and prisons have mostly been about minor cosmetic changes. Having completed their project of incapacitation through mass incarceration, conservatives can tinker at the edge, especially to bring in favored groups like charity workers or government privatizers. This article gives some hope, implying that the changes are real, very serious about both the conditions of prisons and after prison, but also the policies that lead to too many people being locked up for too long. And these reforms are likely to build upon themselves going forward.
Before you start the Dagan/Teles paper, here's a quick reading guide summarizing some worries one might have about the conservative anti-prison project.
- The obvious one is that this is primarily about getting the large amount of money that flows through criminal justice into private hands. This isn't just private ownership of prisons expanding (though If you look at the 10 states in the U.S. that rely the most on private prisons, they incarcerate a percentage of their population in privately owned facilities roughly equivalent to what Europe does in all its facilities). It's things like ALEC's project of privatizing parole.
- Another worry is that this is less focused on reducing mass incarceration than finding more policy for the proper management of incarcerated people. Laissez-faire classical liberals have always been fascinated by the efficient management of people behind bars. People often encounter the idea of laissez-faire Jeremy Bentham's panopticon prison through Michel Foucault's use of it as a metaphor for modernity, but Bentham was being a policy wonk when he was writing about it. He wrote the equivalent of 19th century white papers proposing an all-seeing prison with titles like "Proposal for a New and Less Expensive mode of Employing and Reforming Convicts." His arguments for it were all focused on good public policy, like "morals reformed, health preserved, industry invigorated, instruction diffused, public burthens lightened, economy seated as it were upon a rock, the gordian knot of the poor-laws not cut but untied -- all by a simple idea in architecture?" If he was writing about the panopticon today, you could imagine Bentham arguing that an all-seeing prison would bend the incarceration cost curve during an interview with Dylan Matthews on Wonkblog.
Which is a long way of saying that conservatives often like reforms that try to deal with the chaos and waste of mass incarceration instead of dealing with why our prison system is the largest in the world. They want prison charities to provide aid to those who have become despondent from being locked up, or prison markets designed to teach job skills to those who have been removed from the labor markets. Note that you could just lock up fewer people rather than finding clever ways to try and use more government to solve problems that the government is creating. We are locking up too many people, for too long, for the wrong reasons. Finding better ways to manage the people locked up, while often a praiseworthy goal, might be a distraction.
- Another worry is anti-federalism. The recent attempt by Jim Webb to create a comission dedicated to widespread criminal justice reform failed in the Senate. Republicans killed it because "allowing a federal commission to examine state and local criminal justice systems would encroach on states' rights." The 2012 GOP platform, which many people found encouraging on the issue of incarceration, had a strong focus on the "over-federalization of offenses" and called on Congress to "reconsider the extent to which it has federalized offenses traditionally handled on the State or local level." Though this is important, a lot of changes need to happen at the state and local level too.
- The last worry is the straightjacketing of judges. This is the wave of policy that has created the conditions where, as William Stuntz wrote, "criminal law does not function as law. Rather, the law defines a menu of options for police officers and prosecutors to use as they see fit." Do conservative reformers get worried about the militarization of the police? The courtroom becoming a factory of plea bargains determined by prosecutors?
As I said earlier, the Dagan/Teles piece gives me hope that these won't be major stumbling blocks. But I'd love to read your thoughts in comments.
One thing I would like to see addressed in the future is an answer to this: "By and large, however, it is conservative institutions who now pay the most attention to criminal justice." Why aren't liberal institutions? The failure of liberal groups to prioritize this issue was one of the provocative parts of Michelle Alexander's The New Jim Crow, and the question still needs an answer.