Where the Right Went Wrong on Criminal Justice
Editor’s Note: This is the first in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform.
Conservatism is not a monolith. There is no one way to be a conservative, think like a conservative, or define the conservative outlook. But there are certain bedrock principles of those on the Right: limited government, economic responsibility, and a belief that our Founding Fathers laid out sacrosanct rights in our Constitution. A firm belief in the importance of family, morality, and, for some, faith has generally guided the application of these principles. While no party can represent the whole of conservatism, the Republican Party’s role as the dominant right-of-center force in modern American politics makes it a good place to take ideological temperatures on the Right.
When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.
These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.
The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform.
It is not clear when the tough on crime agenda first crept into the conservative ethos. But it was a major theme of Arizona Senator Barry Goldwater during his failed 1964 presidential campaign. It is important to note that the Goldwater campaign also corresponded with the start of a significant rise in U.S. crime rates that generated serious civic concerns. In the two decades beginning in 1960, the murder rate nearly doubled. Violent crime rose from 161 per 100,000 Americans to 363 in the 1960s, then rose further to 548 in the 1970s, then to 663 in the 1980s. The turbulence of the era was further compounded by various forms of social upheaval that, for the first time, could be routinely broadcast on television into homes across the nation.
It isn’t surprising, then, that the law and order theme became a Republican mantra during those years. But it also isn’t surprising that that mantra generated considerable controversy. Some equated it to a kind of code expression for views considered by many to be racist. It was seen also as an integral part of the so-called Southern Strategy that emerged among GOP powerbrokers after Goldwater, in the wake of the major civil rights legislation that preceded his presidential run, pulling five Deep South states away from Democratic dominance. Richard Nixon refined that strategy in his successful 1968 presidential campaign in an effort to transform the Solid South into a GOP region. Nixon’s embrace of the tough on crime ethos was an integral part of that strategy. As a candidate he used the words “law” and “order” 21 times during his acceptance speech at the 1968 Republican nominating convention. After assuming the presidency, he declared a “war on drugs” and a year later expanded it into a general “war on crime.”
If the law and order emphasis by Republicans was an understandable response to voter concerns, the policy prescriptions that emanated from it proved highly problematic, even calamitous in some reaches of society. Over the course of almost half a century, this war on crime helped to quadruple America’s incarceration rates. Democrats, at a loss for a sound policy response in the face of clear public sentiment, chose not to fight bad criminal justice policy with better ideas. Ultimately they jumped on the bandwagon alongside their conservative opponents. Together, the two parties brought a new era of mass incarceration to America.
But a new chapter is now being written by conservatives on criminal justice policy. Just as the desire to win elections brought the country the tough-on-crime agenda, the necessity to balance budgets has contributed to a new chapter of reform. This reform movement also started in the South, this time in Texas, where a traditional lock ’em up approach gave way to new thinking about how best—and how cheaply—to protect citizens from criminals. From 2001 to 2004, the state experienced a 9 percent increase in its prison population. By 2007, it had billions in prison costs and an inmate population that required the building of at least four new prisons.
The state never built those prisons. Instead, it passed comprehensive criminal justice reform packages that focused on reentry, treatment, and diversion programs. The reforms have generated impressive results. Texas has actually begun closing prisons, saving billions in taxpayer dollars. Moreover, crime has gone down since the programs were instituted. Thanks to these successes, a number of other states have begun their own reforms, including Georgia, South Carolina, and even Louisiana, the state with the nation’s highest number of incarcerated individuals per capita.
Furthermore, as conservatives in these states assert, these kinds of reforms hardly mean that they have become soft on crime. Instead, they have simply become smarter on crime by diverting precious law enforcement resources away from dealing with petty criminals and toward the dangerous ones. The goal of these reforms is not a world without prisons; it is one in which those prisons are small and reserved for our most dangerous offenders.
Conservatives today struggle with a widespread public perception that their party, the GOP, represents primarily the rich and powerful—and that it caters primarily to white Americans. This underlying weakness in a time of changing national demographics took on an added dimension in many quarters with the presidential election of Donald Trump. It wasn’t always thus. Indeed, the modern conservative movement and the Republican Party owe much of their existence and heritage to the 19th century American abolitionists. The Republican Party was born as an institution inextricably linked to slavery opposition. And when the slavery issue further splintered the Democratic Party and contributed to the total collapse of the Whigs, it set into motion a series of events that led to the election of an unlikely lawyer from Illinois: Abraham Lincoln, the first Republican president.
There is no doubt that Lincoln fought the Civil War for reasons beyond slavery, but he made clear in his second inaugural address and other remarks that he believed slavery was at the core of the conflict—and that the carnage of the Civil War was divine retribution for the horrors of slavery. Lincoln further linked slavery to the war when he advocated abolition, first with the Emancipation Proclamation and then via the 13th Amendment. These connections between conservatives, Republicans, and abolition are relevant to the current debate because many believe that reforming a capricious criminal justice system is a natural cause for the party that ended slavery. In this view, a system that demeans and degrades generations of Americans has no place in a civilized society. Many conservatives are beginning to believe also that it has no place on the Right.
Rather, conservatives must go back to the principles of liberty and dignity that first defined their party. Applying these principles to criminal justice reform would allow conservatives and Republicans to separate themselves from the image of being largely a party of white America. Communities of color, after all, are affected disproportionately by the current criminal justice system. African Americans and Hispanics together represent nearly 60 percent of the individuals incarcerated but only about 30 percent of the U.S. population. Thus it is not hard to see what the political Right stands to gain by bringing back the 2000 presidential campaign slogan of “compassionate conservatism” and shedding the impression—deserved or not—that conservatives don’t care about communities of color the same way they care about big business and the wealthy.
After all, conservatives are looking into a demographic abyss. Results from the past several presidential elections signify the need to expand the conservative political base. President Trump captured only 8 percent of the African-American vote, about the same as Ronald Reagan in 1984 and George W. Bush in 2000. While Trump did better among Hispanic voters, he still received only 28 percent, well below the approximately 34 percent received by Reagan or 35 percent received by Bush.
These numbers are even more significant when one considers the country’s changing demographics. In 1980, when Reagan was first elected, Hispanics represented 6.5 percent of the population or 14.8 million citizens. Today, there are more than 55 million Hispanics, representing more than 17 percent of the nation’s population. By 2050, nearly one in three Americans will be Hispanic, and whites will be a minority. If conservatives do not make a concerted effort to change their image and secure votes from these growing portions of the electorate, they will lose their political standing. And criminal justice reform represents a strong opportunity to move these potential voters into the “right” column.
Start with the disparate impact of financial means found in nearly every cranny of our justice system. Even for defendants who have yet to be convicted of a crime this holds true. The average income of those held prior to trial is less than half that of their free counterparts. It also extends to those on the receiving end of crime, with the poorest Americans over three times more likely to be the victims of crime than their wealthier counterparts. Conservative politicians who advance “smart on crime” initiatives have the chance to gain political traction in many communities currently unlikely to vote Republican.
As is fitting for a movement that holds a reverence for tradition, the rebirth of a conservative identity begins with a return to origins on matters of morality. Those on the Right have long injected matters of morality into political discourse and expected government to incentivize model human behavior. Indeed, the Republican platform uses the word “moral” nine times to describe topics ranging from healthcare to the environment. But whether the source of one’s morality is secular or ecclesiastical, criminal justice reform represents an opportunity for morally minded conservatives to forge a revitalized, persuasive conservative identity.
For conservatives, the family unit has long been viewed as the cornerstone of a well-functioning society; criminal justice reform fits snugly with that sentiment. The impact of incarceration, in particular, extends well beyond the incarcerated individuals themselves. Families have to contend with the loss of a breadwinner, spouses with a new strain on their marriage, and children with the absence of a parent.
This takes a heavy toll. For every year a married individual is incarcerated, the likelihood of divorce increases by 32 percent. And the negative impact lingers well past the period of incarceration. Further, separating fathers from their families contributes to increased rates of homelessness, while the incarceration of single mothers often leads their children to be raised in foster care at taxpayer expense. With millions of Americans churning through our jails and prisons every year, it is no exaggeration to say that more reasonable justice policies would save thousands of marriages and return even more children to two-parent households. This is an outcome that conservatives should cheer, and its promotion would only require a small extension of their deeply held family values.
The inherent dignity of every human life is another tenet of the Republican Party that lives on in the conservative movement today. However, it is also an issue that permeates too few aspects of the criminal justice system. From abhorrent prison conditions to the stigmatization of the formerly incarcerated to the negative public safety implications of ill-conceived criminal justice policies, there is no shortage of ways in which the justice system cheapens life. Efforts to alleviate these various forms of suffering and protect our communities offer conservatives another path to better defend the intrinsic worth of every human life.
Given the Christian Right’s prominence within modern conservatism, it seems prudent to at least consider how current criminal justice policies compare to Christian values. While conservatives certainly do not hold dominion over Christian values, Christians represent a substantial portion of the conservative base. Further, Christian interest groups hold special power within the conservative movement, with many, particularly on the Left, being wary of how this influence might be used.
Maybe the most obvious lesson is from Christ himself—a criminal in the eyes of the state, subject to a miscarriage of justice by an imperfect criminal justice system. Beyond the despicable treatment of Christ, however, are the lessons he gave on how those accused and those guilty of crimes should be treated. He recognized the “legality” of stoning an adulteress but nonetheless shamed the crowd by asking for the one who had not sinned to “cast the first stone.” This is an important lesson for conservatives—that the legality of punishment should not be the end of the inquiry of what is just.
While the Bible certainly has examples of harsh punishments, it’s important to note that throughout his life Christ spoke persistently and passionately about reconciliation over retribution. He famously told his followers: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist one who is evil. But if anyone strikes you on the right cheek, turn to him the other also.”
Criminal justice reform offers conservatives an opportunity to secure a more favorable image by returning to their roots and acting in concert with principles that most of them already hold.
The examination of principles and morality helps to answer “why” criminal justice reform nestles into a renewed conservative identity, but this does little to detail how such reforms will sustain this identity and propel it forward. For these answers, it’s necessary to look at the problems that afflict each stage of the criminal justice cycle and how conservatives can reap political rewards from remedial action. With the preamble of the Republican Party platform touting “limited government” and the “rights of the people” as bedrock principles, there is perhaps no better place to begin than pretrial jail reform. Of the roughly 615,000 individuals held in our local jails at this very moment, around 465,000 are awaiting trial and have yet to be convicted of whatever crime has been alleged. Too often, these incarcerated individuals are not the most dangerous, but the poorest—those unable to afford bond. Further, the incarcerated are hardly the only ones to suffer from this loss of freedom. Even a short stay in jail raises the risk of criminal behavior after an individual’s release, meaning that unnecessary jailing is a public safety matter of concern to all. We also pay dearly when we lock up so many of our fellow Americans, with the price tag of a single day in jail as high as $571.27 in some jurisdictions.
It’s not difficult to see how reform-minded conservatives could wade into this pretrial morass and emerge with a burnished image and new political support. Jail reform is an opportunity to address a pernicious form of government overreach that disproportionately affects those constituencies that conservatives most need to court: minorities, youth, and the poor. What’s more, it can be done with little risk to existing bases of support. Reducing jail costs and increasing public safety are easy to defend to lifelong conservatives who expect politicians to exhibit fiscal probity and foster law-abiding communities. In short, it’s an ideal bridge between traditional members of the Right and potential new ones.
While advocacy on behalf of those simply awaiting trial may be the low-hanging fruit of conservative criminal justice reform, the improvement of our sentencing and reentry strategies provides another natural avenue for the growth of the conservative coalition. Not only do we spend an inordinate amount of money locking up an astonishing number of our fellow citizens, but we get shockingly little return on this investment. The rate at which individuals are re-incarcerated within three years of release varies from Virginia’s low of 23.4 percent to Delaware’s high of 69.7 percent, meaning that at our very best we still fail a quarter of the time. Clearly, our strategy of favoring incarceration over its alternatives and then ignoring rehabilitation in our pursuit of punishment is not working.
Tackling this broken system would allow conservatives to once again serve as the public’s primary protectors against inefficient and ill-advised government action. This familiar message would not only resonate with the already established core constituencies of the Right but would likely stir new audiences less familiar with conservative views on the power of redemption and the importance of individual liberty. Conservatives must ensure that individuals do not suffer unnecessary or unjustified loss of freedom and must work to increase the post-release opportunities for those who are incarcerated. This would grant them newfound credibility as the champions of both strong communities and individual enterprise.
Conservatives likewise should be drawn to the myriad ways that the government continues to interfere in the lives and economic well-being of the tens of millions of Americans with a criminal conviction. Following a criminal conviction, the constraints on an individual’s ability to earn a living, and by extension maintain a law-abiding lifestyle, are extensive. Tens of thousands of regulations bar individuals with a criminal record from participating in trades as mundane as hairdressing. Not only do these regulations rob employers of the ability to hire employees, but similar business licensing barriers even prevent individuals from earning an honest living as a business owner in many fields.
Becoming the standard bearers of reform on this issue would only require conservatives to cut through the red tape of government. Not only would businesses benefit from this expansion of market forces, but the primary recipients would be some of our most desperate citizens. This would earn conservatives goodwill from voting blocs that may never before have seriously considered whether the Right’s limited government philosophy might best serve their interests. Once again, these political gains would not obligate conservatives to sacrifice any of their principles or current adherents. It would simply require extending the principles of limited government and individual liberty to a new policy area.
The conservative identity is undergoing its greatest existential test in modern memory, straining at the seams as it continues to apply 20th century policy solutions to 21st century problems. Its future viability will be assured only if it can rejuvenate itself, adapt, and then prove persuasive to a changing America. Criminal justice reform presents a strong opportunity to revitalize age-old conservative ideas on individual liberty and human dignity while delivering policy results that could attract a new class of party members.
Indeed, a string of successes over the last decade by early adopters of this new, justice-minded conservative identity have provided proof that criminal justice reform is a winning conservative issue. The ability of Republican-run states such as Texas to simultaneously lower their crime, incarceration, and recidivism rates has captured the attention of politicians eager to have concrete results to bring back to voters. Across some of our nation’s reddest states—Utah, for example, and Louisiana—new ideas on criminal justice matters have become an asset while overly punitive notions of justice are increasingly a liability. As criminal justice reform picks up steam in state capitals throughout the United States, conservatives are facing a choice: hop onboard and hope to guide reform or stand in its path and get run over.
In addition to its growing acceptance in the halls of power, criminal justice reform has also found a home within the conservative movement. Organizations such as the American Conservative Union and FreedomWorks have championed criminal justice matters and helped to marshal increasing support across the conservative spectrum. Further, some 68 percent of Republicans now believe that the criminal justice system is in need of reform. Even in a conservative state such as Texas, nine out of 10 Republican primary voters back measures such as increased job training for prisoners. It’s time for more conservative leaders to catch up with their constituents.
Conservatism has been too important for America for it to continue treading down a path that implies a lack of concern for minorities and the poor. It’s time for conservative holdouts to embrace a new, more vibrant, and sustainable identity. As an issue with large and growing public support that’s inherently consistent with existing conservative priorities and beliefs, criminal justice reform should be an integral part of this renewed idea of conservatism. Such a marriage between conservatives and reform would not only result in a better criminal justice system but would ensure that conservative ideas remain relevant for decades to come.
Arthur Rizer is the director for national security and criminal justice policy at the R Street Institute. He is also a former police officer, U.S. Army officer, and federal prosecutor. Lars Trautman is a senior fellow of criminal justice and national security policy at the R Street Institute. This article was supported by a grant from the R Street Institute.