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.
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