Reforming Our Prison System
Newt Gingrich had a war plan.
It was 1986. The overdose death of basketball star Len Bias had sent Washington into a full-blown drug panic. Gingrich, a Georgia congressman, was circulating a memo calling for an assault on illegal narcotics on the scale of World War II: "a decisive, all-out effort to destroy the underground drug empire.”
An “incremental” approach such as the gradual American escalation in Vietnam would be doomed to failure, Gingrich argued. Americans would not tolerate another long grind. They would back the drug war only if it was massive and swift—aiming at victory within three years. His conclusion: “We must focus the total resources necessary to win a decisive victory. One too many won’t be a big waste. One too few will lead to defeat.”
Gingrich never got a World War II–sized mobilization. But as it turned out, Americans did have an appetite for a protracted war against drugs and crime, and Gingrich repeatedly pushed to give that war a political front. In 1988, as an advisor to the presidential campaign of George H. W. Bush, Gingrich declared that the Democratic nominee, Michael Dukakis, had “a kind of attitude on crime which puts the innocent citizen at risk and which favors the criminal.”
The following year, Gingrich urged Republicans to pound on the crime theme in congressional races.
Gingrich’s close ally Grover Norquist also saw the political potential in the crime war. As the anti-tax activist argued in 1993, the waning of the Soviet threat had reduced Americans’ hunger for tough leadership—a key Republican advantage. But, Norquist argued, “as the worldwide struggle against Soviet imperialism faded, another issue began to emerge that might well replace it in the conservative arsenal: crime.” Just as Democrats had been unable to stand up to the Soviets, Norquist wrote, they were incapable of taking “a sensible stand on stiff sentencing and more prisons.”
By this point, the United States had already shattered incarceration records, caging its citizens at a higher rate than any other democracy on Earth. In the summer of 1994, the Democratic Congress doubled down by passing a crime bill that provided billions of dollars in federal aid for building more prisons. It wasn’t enough for Gingrich, however. His famous “Contract with America” promised “cuts in social spending from this summer's ‘crime’ bill to fund prison construction and additional law enforcement.” That fall, the GOP took control of the House of Representatives, making Gingrich the first Republican Speaker since the 1950s.
Gingrich and his allies would later shut down the gov-ernment in a drive to impose fiscal austerity. All the same, they passed legislation that would have given states even more prison funding and made sentences even longer than the 1994 bill did. The war on crime had turned out to be long, not short. But the logic of Gingrich’s 1986 memo—“one too many won’t be a big waste”—still applied.
Until now.
In 2011, Norquist spoke at a Washington briefing on criminal justice advertised as attacking conservatives’ “Last Sacred Cow.” For years, Norquist said, conservatives were too busy rolling back frivolous government operations to worry about the workings of essentials such as crime control. But conservatives could no longer afford to direct their critique of government only at their traditional targets. “Spending more on education doesn’t necessarily get you more education. We know that—that’s obvious. Well, that’s also true about national defense. That’s also true about criminal justice and fighting crime.”
At the same time, Gingrich, now 25 years removed from his drug- war memo, was also striking a decidedly new tone. “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dol-lars and lost human potential,” he declared in 2011. “The criminal justice system is broken, and conservatives must lead the way in fixing it.”
Activists such as Norquist and Gingrich have decided that caging Americans should become a solution of last resort, not the default approach to crime. “Stiff sentencing and more prisons” has turned into “smart sentencing and less incarceration.” Conservatives once treated “criminal justice” as exempt from their critique of big government. They took their cues on sentencing from police and pros-ecutors and didn’t think twice about building more prisons and expanding the crime-control apparatus. Many of those same conservatives, and their successors, are now lining up to challenge the value of incarceration and express sympathy for those behind bars.
Skeptics might detect more than a whiff of opportunism in these pronouncements, coming in an era when crime is no longer the hot issue it once was and when recessions have battered state finances like never before. But conservatives themselves have contributed substantially to de-escalating the nation’s crime debate over the last decade. And if conservatives now think incarceration is too expensive, it’s partly because they no longer see it delivering much benefit.
A dramatic example of the new conservative take on criminal justice is Rick Perry, the former governor of Texas and two-time presidential candidate. When Republicans in the Texas legislature pushed a series of reforms to curtail the state’s prison population in 2005 and 2007, Perry offered lukewarm support at best.
By 2015, however, Perry had embraced the cause of corrections reform, citing it as a signature accomplishment and a reason that African American voters should take his second presidential candidacy seriously. “One of the most important things we did in Texas while I was governor is reform our drug-related sentencing laws, so that non-violent offenders could stay out of prison,” he said. Perry made the case for “second chances and human redemption,” declaring, “Americans who suffer from an addiction need help, not moral condemnation. By treating alcohol and drug abuse as a disease, we have given Texans who have experienced a run-in with the law the help they need and the rehabilitation that many seek.” He promised that if he was elected president, “We can reform federal sentencing laws—just as we have done at the state level—to ensure more young people have a shot at a better life.” In fact, most of the 2016 presidential contenders endorsed some type of sentencing reform.
As more Republicans in the states undergo conversions like Perry’s, and more of the arbiters of conservative ortho-doxy such as Gingrich and Norquist embrace the cause of reform, reducing mass incarceration inches ever closer to official Republican Party doctrine. It is a remarkable and unexpected retreat from what was once a conservative article of faith. And it is a breakthrough that has opened the door to the most significant sentencing reform movement America has seen in decades.
This book will explain how it came about. As we show, the decline of public anxiety about crime and a newly anti-statist mood in the Republican Party provided an opening for reformers to change minds. But to make good on this opportunity, those conservatives, and their allies outside the movement, had to slowly build a reform cadre designed to convince Republicans that being indiscriminately tough on crime was not the appropriate position for conservatives, and that reducing sentences and emphasizing reentry was.
Our story sheds light on the way that information is processed in a hyperpartisan era, and how that shapes the opportunities for major policy change in our polarized political environment. Our political system is no longer capable of coming to agreement on great political questions by splitting the difference or logrolling behind closed doors. There is little prospect that major policy changes will happen because of the power of expert opinion and evidence. Changing policy in the coming decades, except in rare moments when one party has complete control, means changing minds—convincing the arbiters of ideological orthodoxy that they need to shift position for their own reasons. Understanding when such changes are possible, and how they come about, is central to our ability to do politics effectively in an era when our older techniques for generating consensus have broken down.
In no other case during the era of polarization has one of our political parties changed so thoroughly, and so suddenly, as Republicans have on criminal justice. We would do well to understand precisely why and how this change occurred if we have any hope of making similar breakthroughs in the future.
