A primer on conservative messaging for indigent defense reform

At the Marshall Project, Alysia Santo has a story titled, "How conservatives learned to love free lawyers for the poor," telling the story of an Idaho legislator and conservative activist who successfully spearheaded indigent defense reforms there. Grits thought it would be useful to highlight some of the messaging that helped them succeed.

For example, here was state Rep. Christy Perry's pitch on improving indigent defense to gun owners:

Perry framed the idea in terms of another issue she knew the gun show attendees felt passionately about. 

“I’d say, ‘What if you get convicted of a felony — and you shouldn’t have, because you didn’t get adequate defense — and now you’ve lost your gun?’ They recognized that this is really about limited government.”

She countered "big government" complaints with an appeal to constitutional reverence:

Others said it would make government even bigger. But Perry argued that public defense was at its core a conservative cause. "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence," reads the Sixth Amendment. “You can’t argue with that,” Perry said. “Not in a conservative state.”

And they framed the issue completely outside of racial politics tropes:

for the growing coalition of conservatives working to reform public defense, race isn’t the central issue. Poor white defendants are being failed by the public defender system just as non-white ones are, they contend. According to the Bureau of Justice Statistics, which last conducted a survey on this subject in 1997, 69 percent of white inmates in state prison said they had court-appointed lawyers, while 77 percent of black and 73 percent of Hispanic inmates did. Many conservatives believe that pointing out racial disparities in this context is polarizing and counter-productive.

David Carroll, the executive director of the Sixth Amendment Center whose work helped sway Rep. Perry,

says looking at the issue through the lens of big government overreach — or what he calls “the tyranny prism” — may provide results that the left ultimately cannot argue with, even though it means sacrificing a central tenet of their ideology.“A tyrannical government hurts those with the least voice in the political process first, including the poor and people of color,” Carroll says. 

“Tyranny explains what people on the left want to explain, that the criminal justice system has disproportionate impacts on people of color.” But conservatives are often hesitant to declare the system racist, he said. “The tyranny prism is a framework that allows conservatives to be at the table, too." 

“I’m not trying to excuse racism. I don’t deny racial disparities, those are facts,” Carroll says. “But people don’t believe, ‘I’m racist.’ So why do you have to force them to go to confession just to start working on this? All it does is drive a wedge and make this impossible.”

Grits is reminded here of Texas' House Committee Chairman James White's invocation of the word "tyranny" in his interview in July on the Reasonably Suspicious podcast. He complained of the "small tyranny" of arrests for unpaid traffic fines as opposed so some of the greater tyrannies involved in wrongful convictions, etc.. The "tyranny" frame is a flexible and powerful one, with a great deal of explanatory value in the same situations where liberals may seek to impose racial explanations. Racial debates in America are fundamentally about power, and the powerless may be victimized by "tyranny" regardless of skin color.

The innocence frame helped sway libertarians, like the Tea Party state Rep. in Michigan who pushed public defender reform because, “If there’s one thing the government must get right, it’s whether or not we’re locking up the right people.”

And there's always the economic framework: "For many conservatives, reform is also about saving taxpayer money, since it can reduce the costs of unnecessary incarceration, endless legal appeals, and lawsuits from those wrongly imprisoned."

Further, “To fund programs intended to provide effective representation to persons accused of crime, when you phrase it that way, it becomes a very low priority,” [the chair of Tennessee's Indigent Representation Task Force] said. But “that is actually a quintessentially fiscally conservative thing to do.”

The general counsel for Koch Industries framed the topic in terms of government ineptitude: “I would say the criminal justice system is a failed big government program, for sure.”

Finally, introducing the issue through this frame can prime conservative lawmakers to address other "tyrannies" within the justice system. Santo's article closed:

Meanwhile, some conservative lawmakers who became passionate about indigent defense have turned their sights on other examples of what they see as abuses in the criminal justice system. In Michigan, McMillin continued his partnership with the ACLU, drafting legislation to limit civil asset forfeiture and warrantless police searches. 

And in Idaho, Perry said she and a fellow House member have crafted a bill to eliminate mandatory minimum sentences for drug crimes. “It’s funny,” she says, “I’ve started filtering my questions through the eyes of a public defense commissioner a little bit.”

So for whomever replaces Jim Bethke at the Texas Indigent Defense Commission, there's your red-state reform messaging. There's a little something in it for everyone.

Some lefty advocates in the story worried that failing to frame the issue in terms of race would doom reforms, with one wag suggesting that the tactic amounted to "putting a Band-Aid on cancer." But in Texas, many criminal-justice reform victories have hinged on similarly framing the topics in terms of conservative values and couldn't have passed otherwise. Based on that experience, Grits can say with certainty that the racial disparity issues still get discussed under this approach. Always. Once this debate is launched, racial disparity issues inevitably come up. But they do so in the context of a framework that includes approaches conservatives can countenance.

What you're seeing here is the real-world implementation of an idea Dan Kahan has discussed, framing issues with enough ambiguity so that different actors in the system can support a proposal based on different value systems. Liberals who want to view indigent defense through a racial disparity frame remain free to do so. But this approach gives the large number of white folks on the other side of those culture-war debates a way to agree with a surprisingly large number of policy prescriptions with which liberals can wholeheartedly endorse.