On ideology and overincarceration: Explaining conservative support for criminal-justice reform

Reacting to the announcement by Bill Hammond at the Texas Association of Business' that the group will support criminal justice-reform measures this session, the Austin Statesman was quick to point out that:

It’s a welcome message, but it’s not original with Hammond. Former District Attorney Ronnie Earle was delivering that sermon throughout a law enforcement career that spanned three decades.

Asked for his reaction to Hammond’s pronouncement, Earle’s comment was typically pithy: “TAB just affirmed that the world is round.”

Alternatives to incarceration have been a cause célèbre with liberals for years, arguments about the high cost of staffing and operating prisons gained traction with even the most conservative members of the Texas Legislature.

Hammond's message may not be "new" (certainly Grits readers won't find it particularly novel), but messengers matter and among Texas legislators, particularly in the GOP, TAB enjoys a megaphone among both the leadership and newer, conservative members.

Grits would dispute Ronnie Earle's contention, though, that TAB has merely copied liberals, a meme which misunderstands what's going on here. Like the Texas Public Policy Foundation, Hammond and Co. have reached similar policy conclusions to liberals on a narrow range of issues, but based on a quite different ideological basis. That's possible in part because much in criminal-justice policy comes down to math and process. The math of overincarceration doesn't work; that's the "earth is round" part that everybody sees. But conservatives differ from liberals like Earle in how they view the process. After all, the "State" in "State v. Smith" is the same government that grassroots conservatives believe can't tie its own shoes in any other facet of public life.

What's new here is a growing willingness to apply small-government conservative values to criminal justice, which in the past has sometimes seemed exempt from such critiques. This new trend has perhaps been furthered by the rising use of criminal law to replace traditional tort liability and government regulation. But as a representative of some of the state's largest employers, TAB also cares about Texas having an educated and productive workforce, goals that are sometimes hindered by overcriminalization and a byzantine array of occupational licensing restrictions, which was a central issue the group focused on at their announcement. TAB's entry into the criminal justice realm represents both an example of enlightened self interest and the ascendance of conservative ideology to the furthest reaches of state government activity.

There are other dynamics at play that make reform perhaps more likely than in the past. For example, while liberals may tremble at the disapprobation of police unions - a political force which has rebuffed countless reform efforts - to some ideological conservatives they're just another public-employee union at the government trough. And the unions reciprocate their distrust. Last year, the executive director of the Combined Law Enforcement Associations of Texas, John Burpo, referred to grassroots conservatives as the "Forces of Darkness," warning his membership that a "cabal of anti-union, anti-public employee businessmen out of Houston" was out to gut their pensions.

The same goes for prosecutors. Last session, the Texas District and County Attorney Association's Shannon Edmonds lamented what he called the "new math" applied by the Tea Party toward prosecutors: "This session's infusion of Tea Party sentiment in the legislative process has affected the standard law and order calculus that we use to gauge the potential fate of various bills. That 'Tea Party sentiment' can be boiled down to this: 'The government is the enemy. You work for the government. Do the math.'" Whether that's actually reflective of "Tea Party sentiment" remains to be seen - I suspect the paranoid comments about "cabals" and "enemies" are overblown calumnies - but that's how the Texas prosecutor and police-union lobbies perceive the state's new wave of conservative legislators.

The embrace of criminal-justice reform by ideological conservatives doesn't reflect a conversion to liberal views, as Ronnie Earle contended, so much as a serendipitous alignment of interests, driven partially by facts on the ground and partially by the conservative movement maturing to the point where at least some of its adherents no longer feel threatened when their views may lead to strategic collusion with those who believe differently than them. Legislators take hundreds of votes each session. A mature politician understands that, on any given issue, partisan distinctions may not be determinative, and it's been a great achievement of the Texas Legislature since the GOP took over that criminal-justice issues can frequently be approached in a bipartisan, fact-driven fashion, as evidenced by evolving positions in the business community regarding incarceration, its costs and consequences.

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