PRISON BREAK: WHY CONSERVATIVES TURNED AGAINST MASS INCARCERATION, by David Dagan and Steven M. Teles. Oxford University Press, 2016. 256 pp. Hardcover $29.95. ISBN 9780190246440.
Reviewed by Lisa L. Miller, Political Science Department, Rutgers University. Email: miller@polisci.rutgers.edu.
In the 1990s, when the Democrats and Republicans were engaged in trying to out-tough one another on crime, few would have predicted that it would be hardline conservatives and staunch law and order Republicans that would be on the forefront of criminal justice reform. But in the most punitive states in the country – e.g., Texas, Georgia, Mississippi, North Carolina and South Carolina – Republican controlled legislatures and Republican governors have passed some of most comprehensive reform in a half century, including rolling back truth-in-sentencing laws, reducing penalties for some drug offenses, and even investing in alternatives to prison programs such as drug diversions.
How on earth did that happen?
David Dagan and Steve Teles aim to answer that question in their lively and highly readable book, PRISON BREAK: WHY CONSERVATIVES TURNED AGAINST MASS INCARCERATION. Given the harsh rhetoric of conservatives during the second half of the 20th century, Dagan and Teles are interested in the process through which “Smart on Crime”, “Right on Crime”, and other conservative visions of criminal justice reform came into being.
While the book is focused on the criminal justice system, Dagan and Teles have a broader question in mind: Why do policymakers come to embrace facts that they once shunned and adopt positions that they once abhorred (p. 7)? Their analysis focuses on three factors that interact to produce change in policymakers’ minds: resources, reputations, and strategy.
In chapter one, Dagan and Teles draw on a range of literature from cognitive psychology, social movements, and political agenda-setting to argue that people can change their minds when others around them, with whom they share a core identity, change theirs. Even then, however, without proper nurturing, resources and some strategizing, change may not occur. “Changing minds is a difficult, complicated business,” Dagan and Teles write (p. 14). But it does happen, with the right combination of resources, organization, and prominent allies.
In this account, the process begins when trustworthy leaders “identity vouch” for the authentic nature of whatever new policy position is being undertaken. This is particular important for conservative criminal justice reformers because support for high level spending on police, prosecutors and prisons was a hallmark of Republican policy from the early 1970s through the 1990s, despite being at odds, at least on a prima facie basis, with the smaller government principles that conservatives claim to value.
In chapter two, Dagan and Teles offer a brief explanation for this seeming contradiction that centers on the convergence of deep opposition to the advancement of social progress for African-Americans and women, with a vehement dislike of anti-war protests. The result was a conservative ideology that advocated small government in the social welfare sense, and big government in the criminal justice/national defense sense. For hardline conservatives, such a system was central to repelling the forces of change that [*68] threatened traditional race and gender roles, as well as America’s place in the world.
This history is traced partly through the rise to prominence of California Republican Assemblyman, and law and order wunderkind, Pat Nolan, who was central to the construction of the notorious super-max prison at Pelican Bay. Nolan, however, was in for a rude awakening. In 1994, he was sentenced to 33 months in prison for corruption and served his time at the federal prison camp in Dublin, California. A friend introduced Nolan’s wife to Chuck Colson, himself a former inmate (on obstruction of justice charges related to Watergate) and the founder of Prison Fellowship, an evangelical organization for inmates and their families. By the time Nolan was released, Colson had offered him a job running Justice Fellowship, the policy arm of Prison Fellowship. Nolan eagerly took the opportunity, telling Dagan and Teles, “I’d seen so much injustice while I was inside that I felt I really wanted to address that. My eyes had been opened” (p. 45).
Chapter three provides the crucial set of structural mechanisms that Dagan and Teles argue set the stage for Nolan and Colson to gain traction on criminal justice reform. Declining crime rates, President Clinton’s successful cooptation of the law and order position, growing political activism against mass imprisonment in libertarian circles like the Cato Institute, alongside a new generation of conservatives who, as Dagan and Teles put it, “were not raised in the crucible of the crime wars” (p. 40), created a context for conservatives to rethink their broad support for massive prison infrastructures.
Chapters four and five argue for the importance of both individuals and organizations in the growth of the conservative criminal justice reform movement. In addition to Nolan and Colson, Families Against Mandatory Minimums founder Julie Stewart also becomes part of this early circle of reform advocates. Nolan, Colson and Stewart began cultivating other allies, including former Reagan official Ed Meese, David Keene (American Conservative Union), and even teamed up with liberals like Virginia Sloane, who later founded the Constitution Project.
The importance of organizations outside the prominent political and religious circles that early conservative reformers operated in also becomes clear. One of those organizations was the Justice Reinvestment Initiative (JRI), which originated with the idea of diverting funds away from criminal justice systems and towards positive social and economic investment in disadvantaged communities. However, as conservatives began gaining prominence in justice reform, their own version of justice reinvestment had less to do with redirecting funds away from criminal justice and more to do with rearranging funds within the system in order to operate in a more efficient manner, both in economic and public safety terms.
Coincidentally (at least in Dagan and Teles’ account), funding for JRI moved from the liberal Open Society Institute to the Pew Charitable Trusts and the Council of State Governments, both organizations that are “obsessively bipartisan,” offering primarily “technical assistance” to legislatures. As it turns out, these organizations played a crucial role in transforming the social, racial, economic justice approach that had been at the core of the original JRI project, into a “return on investment” approach (p. 73), which emphasized release of low-level, non-violent offenders.
Chapters six and seven show how conservative reform ideas began to be put into practice in the most unlikely of places – Texas – which turns out to be on the forefront of criminal justice reform in conservative states. Through a series of political events and coincidental encounters, an unlikely alliance of Democratic and Republican state senators (notably Jerry Madden, Republican chair of the House Criminal Justice Committee) end up [*69] working with the Council on State Governments to propose a major criminal justice reform bill in the state. Lawmakers had already refused funding for new prisons in Texas, even as high levels of probation and parole violations continued to crowd prisons. In 2007, the Texas legislature approved bills that “would have seemed like long shots in Texas” (p. 90), such as a measure allowing police to issues tickets rather than make arrests in certain misdemeanor cases and to allow offenders to earn time off their sentences. According to Dagan and Teles, though Texas’ imprisonment rates are among the highest in the nation, they are also leading the way in declines.
Texas had demonstrated to conservatives that it was possible to reduce imprisonment without jeopardizing public safety. By now, a solid and growing core of reform organizations (FAMM, JRI, Center for Effective Justice), foundations (Pew Charitable Trusts), state policy groups (Texas Public Policy Foundation (TPPF), State Policy Networks, American Legislative Exchange Council), policymakers and politicians had helped to take Pat Nolan and Chuck Colson’s ideas into the mainstream.
The result was “Right on Crime,” a statement of principles on criminal justice reform, was unveiled in 2010 through TPPF and widely endorsed by conservatives leaders, such as Grover Nordquist (Americans for Tax Reform), Ralph Reed (Faith and Freedom Coalition), Tony Perkins (Family Research Council), Stephen Moore (Club for Growth), David Keene (former NRA president), John DiIulio (former director of White House Office of Faith-Based and Community Initiatives), Gary Bauer (American Values), former Florida governor Jeb Bush, Newt Gingrich, and, of course, Pat Nolan and Chuck Colson.
Chapters eight and nine of the book illustrate how the new conservative ‘right on crime’ model begins to proliferate through state governments and into national lawmaking. None of it is easy and Dagan and Teles do not shy away from many stumbling blocks that arise along the way in both state governments and in Congress. But with the many organizations, foundations and political leaders advocating change, substantial reforms begin to occur in unlikely places such as Georgia and Mississippi, among others.
By this point, criminal justice reform had become part of national conservative agendas. Ed Meese’s Heritage Foundation began holding meetings on the over-use of federal criminal law (over-criminalization) with groups as wide ranging as the ACLU, FAMM, the Washington Legal Foundation and the National Association of Criminal Defense Lawyers. In 2008, Congress passed the Second Chance Act with bi-partisan support.
The book concludes by noting that the crime decline, the lack of any major, pro-prison interest group deeply tethered to the Republican party, and the ideological appeal of reducing the size of government clearly contributed to the change in policy positions on criminal justice for conservative lawmakers. But a cadre of respected early reformers with impeccable law and order credentials, solid backing from key foundations, and strategic efforts at the state level to try various reform efforts are the key mechanisms that Dagan and Teles see as having moved conservative policies from unyielding punitiveness towards de-carceration strategies.
The book’s strongest contributions are the detailed analysis of the main players involved in early reform advocacy, and the tracking of foundation support for legislative proposals that Republican lawmakers could get on board with. Early reformers, like Pat Nolan, Chuck Colson, Julie Stewart, and later, Jerry Madden in Texas, seem crucial to the story in that they appear not only long before others join the bandwagon, but because they continue to pop up throughout [*70] the roughly twenty year period that gets us from hyper-punitive conservatives to Right on Crime. The in-depth accounts of how these conservatives, and others (e.g., David Keene, John DiIulio, Newt Gingrich, Tony Perkins) came to see imprisonment as ineffective, inhumane and/or inefficient and to collaborate on reform is a fascinating story in its own right, not to mention a case study in just how hard it is to change public policy in the fragmented politics of American federalism.
Similarly, the organizational accounts are also highly informative because of the crucial role they play vis-à-vis the ability of reformers to utilize foundation resources, such as Pew Charitable Trusts. As time went on, these organizations also helped the legitimacy of their cause with bi-partisan support from groups like The Constitution Project and the Washington Legal Fund.
There is a veritable cottage industry in trying to explain the rise of mass incarceration (to which I have contributed), but it is not clear how well many of those explanations can account for the spread of reform among conservatives. Moreover, many of those accounts (again, some of my own included) do not do the kind of in-depth tracing of actors, institutions, agendas and policy outcomes that Dagan and Teles do here. The result is that we often have a lot of macro-theories and national-level empiricism with little idea of who the actors are, what is motivating them, what stumbling blocks they encounter, or, crucially, how they overcome them. Dagan and Teles’ book is, then, a refreshing look at real people making real decisions that affect real change.
I do have a few concerns but I offer them here in the spirit of lively discussion and ongoing debate on this important book.
First, beyond acknowledging that the great crime decline (p. 32-37) clearly played a role in making crime a less attractive political issue than it was during the 1970s through 1990s, the authors have little to say about how much of a role this played in transforming fire-breathing law and order conservatives into reformers. To be sure, the early reformers they discuss, Pat Nolan and Chuck Colson, were dedicated to alternative forms of criminal justice well before it was clear that the violent crime wave was at last coming to an end.
But it is less clear that people like Tom Craddick, the Republican Speaker of the Texas House of Representatives, would have told Jerry Madden, “don’t build any more prisons,” as he appointed him head of the House Criminal Justice Committee in 2005, if homicide rates had been at their 1980 levels in Texas (16.9 per 100,000), rather than the 5.9 per 100,000 that they had fallen to by 2005, for example.
The violent crime decline part of the story comes around again, briefly, in the conclusion, but I wish the authors would have pressed their respondents on this more. It is unclear whether and how often the key players themselves cited this profound structural change. The authors are keen to distinguish genuine reform ideals from mere economic expediency for the key players in their story and I think they are reasonably successful, insofar as such distinctions are possible to make, given their interview and archival analysis. But I wish they had paid a bit more attention to the role of the crime decline in freeing up previously tough on crime conservatives to be open to reforms. If the crime decline was a necessary condition for reform, no amount of smart, resourceful, entrepreneurial identity vouchers are going to win people over.
A second issue is the limited engagement with the role that liberal organizations played in the reform process. I appreciate that the authors want to tell the story of how conservatives changed. But isn’t it possible, even likely, that the early involvement of groups like Open Society Institute, liberal activist Virginia Sloane (who founded The Constitution Project), and later groups like [*71] the National Criminal Defense Attorneys’ Association, played a crucial role in shaping policy simply because they had been thinking about it for much longer? In other words, readers could come away from the book thinking that ideas about how to maintain public safety without locking up so many people originated with conservatives when, in fact, such ideas have been promulgated by individuals and groups actually living in high-crime areas for decades. Given how important it was for credible conservatives to “sell” their reform ideas to more skeptical Republicans, one wonders if they relied on decades of research and policy outcome studies by liberals about the effectiveness of various non-carceral sentences, rehabilitation versus prison, and so on.
A third issue is methodological. There is always a risk in utilizing interviews as a primary data source when the research questions involve respondents’ reflecting on the reasons for their own actions. Obviously, people have incentives to put the best spin on their own intentions, consciously or otherwise, particularly if they are trying to recruit allies to a cause. Dagan and Teles clearly take seriously their respondents’ claims that reforms were not just about cost-effectiveness but, more importantly, were the right thing to do.
The rich material provided in the book, from interviews to legislation, news articles, foundation reports, state and local political archives, among others, lend credibility to the authors’ claims that these folks were seriously focused on problem-solving, not just for cost alone, but also for more sensible and humane policies. A clear illustration of this is Texas where, had saving money on imprisonment been the only goal, reformers would hardly have proposed “hiring more [probation] officers, expanding drug courts, and setting up pilot programs that would use penalties short of prison to punish probation violations” (p. 87).
But let’s briefly puzzle through a counter-factual. If massive funds for prison construction fell out of the sky in the early 2000s, would reform have been so quickly embraced? Even Dagan and Teles’ own story about Texas suggests that a major initial cause of rethinking imprisonment was an overcrowding problem combined with a legislature that didn’t want to spend more money on prisons. One might reasonably wonder then whether both the prospect of spending so much money on prisons at a time when violent crime was at a 50 year low were a broader context that made the actions of Nolan and Coulson successful.
I was particularly frustrated by the lack of any methodological appendix, table of key players or groups, and/or visual timeline for some of the major developments. The former are de rigeur and the latter could strengthen the overall argument if it clearly shows what the major players were doing prior to the big crime decline, and the various motivations and incentives for foundations, institutes and others that came along later.
Some readers will object to the authors taking, at face value, claims by people like Mark Holden, chief counsel to Charles and David Koch, that, after a “torturous” criminal prosecution for environmental crimes, Charles Koch began to wonder, “how the little guy who doesn’t have Koch’s resources deals with prosecutions like that” (p. 148). The cavernous gap between how “torturous” a criminal investigation for environmental crimes might be for a couple of billionaires, in contrast to the genuinely horrific conditions that people convicted of street crimes endure, is likely to be met with derision and incredulity.
Similarly, Nolan’s conversion to a criminal justice reformer while in prison is likely to infuriate some readers. After all, lots of individuals and groups, many of whom had never set foot in a prison, had been trying to shed light on the horrors of American prisons for decades. [*72]
Reasonable as those reactions are, they do not undermine the central contribution of the book, which is to offer a fair tracing of the process by which individuals and their actions helped to shape policy debates and policy language. And none of these critiques should dissuade anyone from reading this book. It is the latest chapter in a still-unfolding story of the rise and possible decline of the American carceral state. Future research on criminal justice reform will have to take seriously the conservative roots of some of these successful policies.
© Copyright 2017 by author, Lisa L. Miller.
