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Conservatives Shouldn’t Blink On Criminal Justice Reform


What position should conservatives take on ongoing efforts to reform our criminal justice system? Two recent articles, run simultaneously at National Review, effectively present the alternatives.

One essay, by Jeffrey H. Anderson, contends that a demagogue like Donald Trump could probably generate some Nixon-esque electoral momentum by unleashing a torrent of bruising criticism on reformers. The other, by Vikrant Reddy, points out that over-incarceration is still a problem in the United States, and that prudent, moderate adjustments to our penal codes could probably save resources and improve lives without sacrificing public safety.

Both writers are substantially right.

Beating the Tough-On-Crime Horse

Trump isn’t going to overcome his vast negatives by going to war with drugs and crime. Americans are far less bothered about crime than they were in Richard Nixon’s day, for the obvious reason that we have less of it. Further, the measures Nixon initiated to combat drugs and crime have already done much to expand state power, with a number of troubling ramifications. Republicans won’t win the White House by time-warping a 1970s agenda to 2016.

Still, it’s possible Trump could squeeze a few more drops from the tough-on-crime agenda. It’s dated and bad policy, but that wouldn’t exactly make this a standout plank of the Trump platform.

As Anderson points out, it makes some sense for an immigration hardliner to embrace tough-on-crime. It’s “a silent majority issue.” It plays to aggrieved whites’ sense that somebody out there is wrecking their society and getting away with it. Also, President Obama is in favor of justice reform, and Jeff Sessions opposed. What else do you need to know?

Although crime has fallen significantly since the late twentieth century (and continued to fall through most of Obama’s administration), a recent spike in homicides could give Trump a pretext for dusting off the old playbook. The streets running with blood! Social justice warriors to blame! It does sound like a tailor-made Trump narrative. Given that Trump has already promised to personally see to it that anyone who kills a cop receives the death penalty, it’s entirely possible he might take Anderson’s advice.

Or We Could Make Good Policy

Here’s the thing about criminal justice reform. It’s a good idea. We should pursue it cautiously, following data rather than ideologies. Do what works; stop doing things that don’t work. My own experience suggests most people working within (or in connection to) the justice system are pretty committed to finding data-driven methods.

Reddy presses this point by tackling a list of “criminal justice myths” Sean Kennedy lists at RealClearPolicy. Contending that reform-minded conservatives are “imagining more problems than they solve,” Kennedy looks to explode the “myths” that he believes drive reform. The broader implication, obviously, is that conservatives like Sen. Mike Lee have been seduced by the siren song of social justice.

Reddy shows that Kennedy’s “myth list” is mostly composed of straw men and red herrings. For instance, Kennedy is right to point out that we may not really incarcerate a larger percentage of our citizenry than any other country on earth. Sure, reported statistics indicate that we do, but North Korea could very well be lying. They probably are! Maybe Turkmenistan is too! No worries, guys. We totally aren’t Incarceration Nation!

Here’s a good rule of thumb. If you have to rely on projected dictatorial dishonesty to avoid a shameful booby prize, you probably should not be celebrating that all is well. We may not actually be No. 1 in incarceration, but we really do incarcerate an enormous number of people. (As Reddy points out, our incarceration rate is six times Canada’s.) Is it really necessary to do that?

Looking at the data from state-level reform efforts, it seems likely that it isn’t. In true glass-half-empty fashion, Kennedy offers a spirited argument that a substantial share of our inmate population does threaten public safety. Reddy makes the obvious counter-point: even if that’s true, there may still be a sizable minority that doesn’t pose a serious threat, in which case we’re wasting a lot of resources by incarcerating them.

Incarceration certainly does need to play a role in our justice system, but past a certain point it can become counter-productive to uproot not-very-dangerous people and place them in communities of criminals. The data give us reason to believe we’ve moved past that diminishing-returns point, so conservative reformers are looking for ways to make the system better.

They aren’t recommending that we throw open the prisons and invite everybody to walk free. Instead they’re scrutinizing penal codes, analyzing our ever-growing wealth of data, and testing ideas for how to make the system more efficient, functional, and fair. Some have been on this project for many years now, pursuing reform for fundamentally conservative reasons. It’s not a social-justice coup.

The Price of Demagoguery

From an electoral narrative perspective, Anderson’s case looks like the easier sell. But what if Reddy and his wonky fellow reformers are actually right? What might we lose in making electoral hay through sacrificing prudent policy initiatives?

We lose the opportunity to influence developing policy. That’s bad for a number of reasons. For one thing, it ultimately facilitates the Left’s long march through our public institutions. The future usually belongs to those who help build it. Along those lines, staying involved in reform efforts is the best way to ensure the process isn’t hijacked by an irresponsible social-justice agenda.

The future usually belongs to those who help build it.

The real myth about criminal justice reform is that we somehow have a choice in whether it happens. It’s already happening. It will continue to happen. With some determined foot-dragging, conservatives might slow things down for a while, but the truth is that reform efforts really aren’t primarily driven by social-justice angst. They’re driven by the basic reality that a fraying social fabric leads to a lot of disorder, and that prisons can’t be the whole solution to that. They’re too expensive and too community-invasive.

A more multifaceted approach to social disorder was needed, so states got to work developing one. Conservatives have already made some sterling contributions to this process. We should take credit for those, and keep the momentum going. Disavowing the whole process will hurt us in the longer run.

As lovers of order, conservatives may appreciate the cognitive simplicity of trying to lock away all the bad guys. As lovers of liberty, though, we should prefer that people be free if they possibly can. Justice reform is one of the best contemporary examples of how liberals and conservatives can sometimes work together for common goals, even if their motivations are somewhat different. We may want to return to that template in the years to come. Must every conservative achievement be tossed on the Trumpian pyre?