Sunday Commentary: Conservative Approaches to Criminal Justice Reform

During the district attorney election some of the most fascinating conversation was not on the race itself – which turned out to be rather interesting in its own right – but rather over the future of criminal justice and the direction of reform.

Taken at face value was the notion that criminal justice reform was a leftist movement and that conservatives supported a continuation of the mass incarceration policies of the previous 40 years or so.

That’s why I find the article by Arthur Rizer and Lars Trautman in the American Conservative, “Where the Right Went Wrong on Criminal Justice,” to be so important and fascinating.

They make a key point that I often attempt to make to my more conservative friends as to the lack of consensus on the left on key issues.  The writers note: “Conservatism is not a monolith.”  But they also note there are certain “bedrock principles of those on the Right,” and these include: “limited government, economic responsibility, and a belief that our Founding Fathers laid out sacrosanct rights in our Constitution.”

They note that for decades on the issue of criminal justice, Republicans have “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 it also comes with a cost, where “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.”

They warn about this policy: “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.”

After spending some time dealing with the rise of incarceration and tough on crime policies they note that “this war on crime helped to quadruple America’s incarceration rates.”

Now they argue a new chapter is being written by conservatives on criminal justice policy.

They note the state of Texas.  “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.”

But instead of building those prisons, they passed criminal justice reform 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,” they write.

The authors argue that “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.”

They believe, “Conservative politicians who advance ‘smart on crime’ initiatives have the chance to gain political traction in many communities currently unlikely to vote Republican.”

They also cast this into moral terms, focusing their discussion on the family unit and the impact of incarceration, which they see as extending “well beyond the incarcerated individuals themselves.”

They find that this takes a heavy toll on families: “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.”

And they see it as a political advantage: “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.”

They note: “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,” they write. “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.”

The authors here make a lot of important points not only politically, but also with regard to the problems of the criminal justice system.

Last week, I attended an outreach meeting of the Community Corrections Partnership here in Yolo County.  It was interesting to hear probation and the district attorney’s office talking about the need to change the way they deal with criminality.  This notion seems to be catching on: “Prisons are small and reserved for our most dangerous offenders.”

The problem that we face here is that the types of reforms which deal with non-violent offenders only go so far.  As was pointed out to me, the overcharging of non-violent offenders or the incarceration of non-violent offenders is only dealing with about 20 percent of the system.

It is important to change the way we deal with those non-violent cases for sure, but they actually represent a small part of why the prison population has exploded in the last four decades, and correcting that policy therefore is not going to be a complete solution to the problem of mass incarceration.

Nevertheless, if more conservatives understand that most people who go to prison or jail are going to be released and we need to figure out a way to get them back into the mainstream economy, then I think we have made real progress here.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Jeff M

    Were to begin…

    First, the American Conservative gets at least one thing correct on this topic… that “Conservatism is not a monolith.”  And that magazine is an example as it often drifts into opinions outside traditional conservative orthodoxy.

    Also, let’s not forget that the current high incarceration rate was brought to use largely by Bill Clinton and his response to one of the most pressing campaign issues at the time… that was the high and growing crime rates in the urban areas.  Now, maybe we should make the case that Bill Clinton was a conservative by today’s Dem standards, or today’s American Conservative standards… but the fact remains that Democrats have a big piece of where we find ourselves today.

    The challenge is to strike a balance between the rights of people in this country to be reasonable free from the harm of criminals, and a system that gives second chances to – primarily young people – that break the law before their frontal lobe is fully developed.

    Let’s be honest and frank here… the REAL argument between the right and the left with respect to balance relates to property crime.  There are weird social justice liberal types that want to turn violent criminals into victims and see more of them released on the streets, and there are weird hard-core law-and-order conservative types that believe J-walkers should have the book thrown at them.  However, most people on both sides of politics line up quite alike in their opinions about violent crime.  There is even bi-partisan agreement on criminal reform for drug use and possession.  Ironically as the drugs are legalized and taxed more, we also see a growing bipartisan support for preventing the crime of stealing tax revenue from unlicensed sales of these highly-taxed legalized drugs.

    But liberals in generally tend to not care as much about property crimes as do conservatives.  I have my theories for why this is and my general perspective is that conservatives are more right in their views and opinions than are liberals in consideration of the overall impact to society caused by different levels of property crime.

    The domain of theft is an interesting study of individual and collective morality, tribalism and culture.  Here is a mental exercise you can use to confirm it.

    Why would a person be less likely to steal from his own family rather than another family?

    The answer is pretty easy… stealing from one’s family harms people that the thief cares about and considers his own tribe.  A family generally contains its own family-culture, and stealing from family members would likely often been forbidden within that family culture.   However, that family culture and more macro tribal culture may be accepting of some level of outside theft.

    The USA is unique in its freedom and diversity.  It lacks culturally-based hierarchical class divisions.  It also lacks a strong ubiquitous cultural basis that is both a nature of its youth as a country (made of immigrants).  Lastly, it is a country that, primarily on the left and left of center, has grown secular and has rejected a basis of morality based on religious doctrine.

    Essentially, the US isn’t a family.  We are a collection of individuals and tribes that coexist.  And many of those tribes lack strong cultural tribal morality to provide a lesson for “do not steal”.

    And so our crime and punishment standards for theft are higher than they might be for other countries with more history and more cultural homogeneity.  We cannot afford yet another liberal bleeding heart experiment to lower the property crime bar, because theft then becomes more ubiquitous as yet another tax on society.

    Conservatives know this and reject the arguments from the left that crime and punishment related to property crime is racist and unfair.   Liberals should stop with that argument and instead start working with conservatives on a basis of shared interest to reduce crime.

    1. David Greenwald

      ” the REAL argument between the right and the left with respect to balance relates to property crime. There are weird social justice liberal types that want to turn violent criminals into victims and see more of them released on the streets, and there are weird hard-core law-and-order conservative types that believe J-walkers should have the book thrown at them. However, most people on both sides of politics line up quite alike in their opinions about violent crime. ”

      I don’t think I agree on this point.

      First of all, there is an increasing movement across the board away from incarceration for non-violent offense and towards the type of things they talk about here.

      However, I don’t think there is agreement on what to do with violent offense. There may or may not be wide agreement on the need for incarceration, but there is a good deal of disagreement on the length and form of that incarceration.

      Also, as I attempt to point out in my commentary and as I believe the data clearly show, there is a false common perception that non-violent crimes are driving mass incarceration, but the reality is that this is false. The vast majority of increase in incarceration are longer sentences for violent crimes. And so unless we deal with that issue, we are not going to really address incarceration.

      1. Jeff M


        And chilling.

        I believe from what I am reading here is that you, nor your cohort of social justice ant-law enforcement / pro-criminal justice reform, even know what the “problem” is and don’t know what you think you want to change.

        But I am beginning to see a political strategy here.  As the left becomes more violent and also seek to increase their voter ranks by making victims of violent criminals, push for changes to the system of law enforcement to go easier on those that commit violence.

        I think the Nazis were successful at this about 70 years ago.

        But now that I know your interest is to soften our laws on violent crime, it is easier for me to flat out reject that idea on the grounds that it is foolish, absurd, nonsensical and a clear sign that we might want to consider that people with these ideas are dangerous to society and unfit to have any political positions where they can influence decisions in this area.

        Really… have you lost your mind?  You want to soften laws and punishment of those that psychically harm others?  Please explain.

        1. David Greenwald

          I re-read what I wrote several times to make sure I didn’t put something in there that was unintended.  The point that I made is that there is a disagreement over the length of sentences for violent crime.  There is nothing particularly new about it.  Part of the reason for that is that right now we sentence people to an age beyond which most people age out of violent crime.  I don’t view an analytic approach to this as softening laws or punishment, I view it as being smarter about who we incarcerate and for how long.  There are some folks who believe that we should cap sentences at 20 years, I’m not there yet, but I do think there is a lot of room to look at length of sentence and how and when we determine people are dangerous.


        2. Jeff M

          Ok, so you are not in favor of reducing the number of violent acts we consider worthy of criminal punishment, you are for reducing the prison sentences for certain crimes of violence.  Do I have that correct?

          If so I apologize for going off.   That is more reasonable, IMO.  Although I wonder if this is another sign that progressives don’t know when to stop.  You eliminate the death penalty and create a new line of emotional turmoil thinking about the criminals now wasting away in prison.

          I had previously asked all my relatives on both sides and my in-laws if anyone in the family from the present generation back to ask long as all could remember was ever convicted of a violent crime.  Out of thousands of relatives, the only thing anyone came up with is a case of domestic violence… one involving alcohol and the relative that was convicted of it eventually committed suicide.

          This did not surprise me.  I think my family and my family values are such that we don’t really connect with anyone that commits violent crimes.  I suppose I consider people that commit certain violent crimes as being a sort of reprehensible sub-species of humanoid that became undeserving of normal human consideration when they committed the despicable act.

          Every second chance given a person includes a risk that they will repeat the same bad behavior that got them in trouble the first time.  I am not very accepting of additional societal risk for violent criminals repeating violent crime because of the tremendous harm they do others.  My opinion is that their morality had to sink so low to enable them to do the first crime, that I view it as a fundamental human flaw/dysfunction that cannot be remedied and thus they should not be given leniency.

          Now, where I could join in to reduce violent crime is to start repairing the broken community, family and individual morality breakdown that infests certain neighborhoods and makes residents more prone to violent crime.

      2. Jeff M

        I am wondering too… the left believes they have an advantage based on their success getting hate crime laws on the books… so we end up with a sort of affirmative action crime and punishment system where people belonging to sanctioned victims groups can do violence to those outside of any sanctioned victims group with fewer criminal punishment consequences.

        Did I nail it?

        Like I wrote, chilling.  Nazi-like stuff.

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