Friday, November 27, 2009

NY Times sees new bipartisan consensus on criminal justice, ignores old one

A story by Adam Liptak published on the front page of the New York Times Tuesday has been getting a lot of attention: "Right and Left Join Forces on Criminal Justice." It described growing "signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained."

I'm glad to see the story, and have witnessed many signs of this seemingly unlikely coalition here in Texas over the past several legislative sessions, and even on national issues.

But I'd disagree somewhat with the premise of the article, which is that the left and right are only just now coming to agree on criminal justice. The reality is, for my entire adult lifetime there has been a standing, bipartisan consensus on criminal justice: In favor of expanding its scope and boosting police power. The traditional framing of supposed left-right divisions simply doesn't fit well with the realities of criminal justice politics.

This becomes clear working in the political process: In general, liberals who like big government are more willing to use criminal laws to solve social problems. Even among Democrats who dislike mass incarceration, very few spend an ounce of political capital to oppose creating new crimes or increasing criminal punishments. That's how Texas ended up adding 40 new crimes and increasing penalties for 36 more during the most recent legislative session, even though the House committee in charge of most of the bills (Criminal Jurisprudence) was controlled 8-3 by Democrats.

The majority of bills at the Texas Legislature increasing or creating criminal penalties are carried by Democrats, and it was Ann Richards who successfully won nearly 100K new prison beds back in the '90s. At the national level, the biggest drug warriors in the Senate for 20 years have been Joe Biden, John Kerry and Tom Harkin. So this recurring characterization of conservatives as tuff-on-crime and liberals as "soft" ignores how such issues play out in the real world, where tuff-on-crime is a bipartisan consensus, not a culture-war style tug of war.

The "liberal-conservative" stereotypes on criminal justice mask significant diversity of views in both parties over support for mass incarceration. For the past generation, a plurality from both camps have joined together to beat down "fringe" elements of their respective parties by labeling them soft on crime and thus supposedly unfit to face a general electorate. That's why neither party will reliably support reform measures; a large number in both still hew to the "tuff-on-crime" consensus. Nearly all successful reform efforts on criminal justice piece together coalitions from discrete sub-factions in both parties that don't share that "tuff" consensus view.

On the Republican side of the aisle, too, there is much more diversity of opinion about criminal justice reform topics than the "tuff on crime" stereotype gives them credit for. There are three wings of the conservative movement with either ideological inclinations or near-term self interest in supporting certain aspects of criminal justice reform.

Libertarians are the easiest to identify, but they're also the smallest group and the least powerful. They're inherently suspicious of concentrated government power and critical of policies devaluing individual rights.

Less appreciated is the extent to which religious conservatives are frequently more willing, even, than many secular liberals to embrace notions of redemption and salvation for sinners. They're also more likely to listen to folks from prison ministries, chaplains and other religious voices who have direct contact with the system. Plus, they frequently come to the table with a notable and under-appreciated cynicism about government power. I can recall, after he was named Chairman of the House Corrections Committee by then-Speaker Tom Craddick, former state Rep. Ray Allen (a former campaign client, for the sake of full disclosure) once told me that his past included organizing anti-abortion protests at clinics where, when the cops showed up, they were usually there to protect the "abortionists" on the other side of the picket line. Given that somewhat confrontational history with law enforcement, it felt "a little weird," he once confided to me, being placed in charge of the state prison system. Allen went on to propose and pass legislation to divert first-time, less-than-a-gram drug offenders away from prison onto probation.

Probably the element that finally drew the New York Times' attention, though, has come in the arena of corporate conservatism, which has recently embraced narrow aspects of criminal justice reform in response to corporate prosecutions, prosecutorial misconduct, and the expansion of criminal law to rein in business excesses in lieu of traditional regulation (overcriminalization). Businesspeople don't like to be regulated, but it turns out they like being prosecuted even less.

This trend has been percolating in the states for a while and in places like Texas and Kansas, where seemingly unlikely reforms have come to pass, it was political coalitions built on these insights that allowed them to happen. I don't know whether that's replicable in D.C., where politics is more strictly pay-to-play. But there's a lot more potential for legitimate bipartisan consensus on criminal justice reform than on many other issues the nation faces.


R. Shackleford said...

They have too much power already.

Chris Halkides said...


A few months ago The Economist ran a cover story on reforming our sex laws. They noted the existence of the ratchet effect, in which each generation of politicians lengthens the sentences that the previous generation set. There is no political pressure to move in the other direction, even when it might make sense.


Anonymous said...

I think there is a lot to Scott's point about the corporate wing driving this because they have recently gotten a taste of what they were immune to for so long. Suddenly they know the despair of dealing with prosecutors and discovering what the rest of us discovered a couple of decades ago: (1) the prosecutor is in charge, and (2) if the prosecutor is wrong, see rule 1. There is no quicker way to get a spread about "emerging cultural change" in the NY Times than when the financial power barons have a social "insight". I also agree that there isn't a Dem out there, up to and including all that we worked so hard to elect for this change we can all believe in, who gives a solitary damn about the injustices of the criminal justice system. Our Dems are not and never have been about criminal justice reform.
There is an important development, though, I think, that is more meta to the traditional caricatured roles. I think the reason we are going to see changing attitudes as a natural consequence of the growth of the criminal justice machine. As Scott points out, attitudes really never were as simple as "soft Dems" and "tuff Repubs". But it is about to get more complex than any simple stereotype of that nature can possibly handle. The reason is that law enforcement has gotten into so many different areas. There is no one "for or against" attitude that will suffice. They have realized that diversification is the key to their survival and prosperity. Rather than being for or against law enforcement in general, we are going to move into an era when there are many groups who are for or against different types of enforcement activity. This was a smart move by the cops, because they have increased their lands while making themselves less accountable for any given activity. It also splinters the opposition, which is a tried and true method conservatives use to keep liberal power at bay. They splintered the left three decades ago and we have never reunited, and we apparently never will. They used economics, gay rights, and foreign policy to do it. The new face of law enforcement is going to have the same effect. There will be too much activity to be discussed or characterized under one label, and the overall effect will be splintering of dissent, which will weaken the general alliance against growth in police power. That's the way they want it. The proponents of police power in the country learned a hard lesson in the sixties, and they will never allow that to happen again. They are six steps ahead of politics at all times, and they are never going to relinquish the gains they have made. They now know how to manage public opinion, and we are going to see some rather sophisticated tricks emerging in the next few years. Sadly, I don't think any of these engineered changes in public attitudes will lead to any reversal in the trend toward constantly increasing police power, constantly increasing criminalization of behavior, and constantly increasing proportion of people entangled in corrections. Although traditional prison head counts may decrease, the technology of control is about to make huge leaps in sophistication, allowing increasingly large segments of the population to be tethered electronically in very restrictive and miserable ways. And since the traditional concept of a win in criminal justice is staying out of jail, people will welcome it with open arms. We are about to enter the era which books like 1984 and This Perfect Day were written about. Control will be applied from the bottom up, and within a few decades a majority of the population will be under some type of sentence of electronic surveillance and restriction of activity.

Anonymous said...

There exists an ”us v them” mode of thinking. I agree that it is not really set in a political ideology but has traditionally been made up of a socio-economic one. It is only when those of a different status begin to be treated the same by the State that things begin to change. This is not a new advent but one that has precedent in every modern societal order someone, somewhere has tried to impose.

The problem, in my opinion, is not a fundamentally political one but a human one. There are those that wish to impose order and in doing so will justify every means to reach a desired end. It is acceptable in their minds and those in power fully weld their justifications on to others who blindly follow their lead. And when that person is stopped, another will take up arms and continue in another seemingly innocuous “for the good of all mankind” pursuit.

But it never really is for the good of “all.” It is really for the good of some. And the other some are the ones persecuted, imprisoned, and end up with broken lives. Technology will make this dynamic easier than ever to implement, unfortunately.

I don’t see a change on the horizon. I can only hope that from time to time some in power will remember that we are them and to perpetuate an injustice on one is to perpetuate injustice on us all.

I like Saul Bellow’s insight, “There came a time (Early Modern) when, apparently, life lost the ability to arrange itself. It had to be arranged. Intellectuals took this as their job. From, say, Machiavelli’s time to our own this arranging has been the one great gorgeous tantalizing misleading disastrous project.”

I’m afraid the social experiment is not yet over. God help you if you are on the “wrong” side of it.

Tom K said...

As I noted over on my blog regarding this story, I thought the new coalition would have much more credibility if people such as Meese would admit that they were previously part of the problem.