On Tuesday, the U.S. Senate passed the The First Step Act, an overhyped criminal justice reform bill that nonetheless stands to become the first truly bipartisan and meritorious bill that President Trump will sign into law. The 87-12 roll call may surprise casual observers of American politics, especially because the Republican Party has since Richard Nixon’s successful bid for the presidency in 1968 built its brand around an extremely punitive approach to maintaining “law and order.”
If you are a subscriber to the Washington Monthly magazine, however, you might have known this was coming as far back as 2012. Fresh off the convincing reelection of Barack Obama, we published a feature article by David Dagan and Steven M. Teles in our November/December 2012 issue. The piece, titled The Conservative War on Prisons, explained how conservatives had begun to come around to the view that the criminal justice system was badly in need of reform.
American streets are much safer today than they were thirty years ago, and until recently most conservatives had a simple explanation: more prison beds equal less crime. This argument was a fulcrum of Republican politics for decades, boosting candidates from Richard Nixon to George H. W. Bush and scores more in the states. Once elected, these Republicans (and their Democratic imitators) built prisons on a scale that now exceeds such formidable police states as Russia and Iran, with 3 percent of the American population behind bars or on parole and probation.
Now that crime and the fear of victimization are down, we might expect Republicans to take a victory lap, casting safer streets as a vindication of their hard line. Instead, more and more conservatives are clambering down from the prison ramparts.
Dagan and Teles noted that his competitors did not bat an eye when Newt Gingrich spent part of his time on the 2012 presidential campaign trail talking about the “urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential.”
That was by way of introducing three basic ideas that have proven prescient. The first was the one that came to fruition on Tuesday, which was that time might soon be ripe for a truly bipartisan effort to rethink how America handles criminal justice, at least on the federal level.
The second was an explanation for how conservatives had come to reconsider their assumptions, which is a fascinating story all in itself.
The third was a basic musing about the fractured and polarized state of American politics and how future reform efforts might unfortunately have to resemble the odd circumstances which had allowed liberals and conservatives, for primarily different reasons, to reach a consensus on the need for criminal justice reform.
I think that part of their piece is worth reproducing here because it demonstrates the kind of value and advanced warning the Washington Monthly often provides its subscribers and supporters:
The lesson of the slowly changing politics of crime on the right is that policy breakthroughs in our current environment will happen not through “middle-path” coalitions of moderates, but as a result of changes in what strong, ideologically defined partisan activists and politicians come to believe is their own, authentically conservative or liberal position. Conservatives over the last few years haven’t gone “soft.” They’ve changed their minds about what prisons mean. Prisons increasingly stand for big-government waste, and prison guards look more and more like public school teachers.
This shift in meaning on the right happened mainly because of creative, persuasive, long-term work by conservatives themselves. Only advocates with unquestioned ideological bona fides, embedded in organizations known to be core parts of conservative infrastructure, could perform this kind of ideological alchemy. As Yale law professor Dan Kahan has argued, studies and randomized trials are useless in persuading the ideologically committed until such people are convinced that new information is not a threat to their identity. Until then, it goes in one ear and out the other. Only rock-ribbed partisans, not squishy moderates, can successfully engage in this sort of “identity vouching” for previously disregarded facts. Of course, there are limits to how far ideological reinvention can go. As political scientist David Karol has argued, it is unlikely to work when it requires crossing a major, organized member of a party coalition. That’s something environmentalists learned when they tried to encourage evangelicals to break ranks on global warming through the idea of “creation care.” They got their heads handed to them by the main conservative evangelical leaders, who saw the split this would create with energy-producing businesses upon whom Republican depend for support.
But that still leaves plenty of issues on which bipartisanship will be possible—as long as it doesn’t feel like compromise for its own sake. Defense spending, for example, is already being slowly transformed by the newly energized libertarian spirit in the Republican Party. On these matters, liberals are in a bind—while they may dearly long for partners on the right, they can’t call them into being, and getting too close to conservative mavericks may tarnish their vital ideological credentials. In this confusing world where those on the extremes can make change that those in the center cannot, liberals will have to learn that they sometimes gain more when they say less.
You can get a year subscription to the Washington Montly for only $19.95, which I consider a serious bargain. But you can also support our endeavors through donations, and we currently have a sweet deal that will double your impact. Through the end of the year, all donations will be matched dollar for dollar by NewsMatch, and all donations of fifty dollars and above will get you a free one-year subscription to the magazine. We really depend on this kind of support to keep afloat and maintain our independence, so please consider taking advantage of this offer while it lasts. And, yes, your donation will be tax-deductible!
Very good timing, my friend. My subscription just expired with this last issue. Donated the $50 to get the subscription re-upped.
Love the magazine, BTW. A great resource. Highly recommend to anyone who is interested in being more informed than any of your friends or family.
Way to set a good example, Mike!
Thank you!
Just donated $50 using the “boxing glove” ad above!
Thank you so much!
I think my current subscription is still active but I re-upped anyway because WAMO is so good. Keep on.
As to the topic, I have long been outraged about the blatantly racist nature of the justice system in this country. The First Step is just that only a start. There is so much reform needed starting with dismantling the hideous private prison profit-centered internment and humiliation system.
Even going beyond that first step will take dismantling the GOP at the federal level. Meanwhile, the vast majority of affected prisoners are actually at the state level (at least 2/3rds). That’s the real problem that can only be addressed at that level (though a federal example could help). Most of the old Confederacy is hopeless for the long term but in other states there is some hope for reform.
“Prisons increasingly stand for big-government waste, and prison guards look more and more like public school teachers.”
Although I am reluctant to look this gift horse in the mouth, its hard to totally ignore the possible basis for this shift is the coloring of this issue with these two talismans of the greed and nut case wings of the far right.
The other day I heard someone talking about this bill and they prefaced a rundown of the list of issues with the system with the obligatory, “we have the greatest criminal justice system in the world.” And that’s the problem. How can it be that when we lock up far more people than the I believe all countries combined, as well as run a verifiable unequal system that treats offenders differently based on race and class? No we don’t have the best in the world, but a severely flawed system that, just like slavery did, puts the lie to the concept of “America” as being some beacon of freedom, equality and fairness. Yeah, its that damned serious.
The system we have is severely flawed, with issues ranging from a system that is structurally designed to treat the poor far differently than the wealthy, to a prison environment that borders on the Draconian, considering that the net effect of it is more vengeance and cruelty than actual justice in terms of the convicted paying penance for crimes. Culturally we accept rape in prison with barely a wink and a nod as somehow “just.” Innocent people are knowingly put in prison, and rather than acknowledge that as a serious problem, more effort is put into justifying these mistakes (they must have done something) rather than working to correct those who put them there just to add a notch on their investigative or prosecutorial belts. Worst of all, the death penalty is worshiped — another data point in our culture of death, even though we have knowingly put innocent people to death over the years. And this too is responded with, essentially, the police are “good” and would never do anything “bad” and they victims — yes, they are victims — “must” have done something else to justify their fate.
The net effect of what’s being done is good, but I fear that with this, they’ll consider the problem solved. Equalizing crack and powder cocaine sentencing is a good thing, however more need to be done on the front end of the justice system that puts more people in prison in the first place.
Lastly, although I give van Jones and others credit, his embrace of Trump, to the extent he is, is unseemly, given the situation. Instead of taking victory laps, how about acknowledging this bill solves a small part of the larger problem, and working hard at getting after the rest of it.