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Reason Foundation

Beyond Bars

A new project has conservatives thinking more seriously about crime.

Radley Balko
December 20, 2010

Last week I received an email press release directing me to a new public policy website. On that website is a quote from Reagan administration Attorney General Ed Meese, saying it's time to reconsider mandatory minimum sentences for drug offenders. There is also a quote from Texas Gov. Rick Perry, suggesting we consider rehabilitation as an alternative to incarceration for nonviolent offenders.

They have my attention. Welcome to Right on Crime, a project of the Texas Public Policy Foundation aimed at changing the way conservatives think about criminal justice. Started by Texas attorney, author, and policy wonk Marc A. Levin, Right on Crime is a striking and welcome departure from the sloganeering that has moved conservative criminal justice policy for most of the last 40 years. "While the growth of incarceration took many dangerous offenders off the streets," says an introduction to the website, "research suggested that it reached a point of diminishing returns, as recidivism rates increased and more than one million nonviolent offenders filled the nation's prisons. In most states, prisons came to absorb more than 85 percent of the corrections budget, leaving limited resources for community supervision alternatives such as probation and parole, which cost less and could have better reduced recidivism among non-violent offenders."

There is more like that. From the site's section on prisons: "The United States has 5% of the world's population, but 23% of the world's reported prisoners. It is not clear, however, that these high rates of imprisonment are leading to safer communities." And here's an excerpt from the section on juvenile justice: "Cost-effective interventions that leverage the strengths of families and communities to reform troubled youths are critical to a successful juvenile justice system. Youths who 'slip through the cracks' may remain in the criminal justice system throughout their lives even though some could have been saved by effective policies during pivotal developmental stages." Right on Crime seems to be aimed at encouraging conservative pundits and politicians to look at data and academic research for guidance when formulating crime policy, instead of falling back on demagoguery and exploiting the fear of crime for political gain—the on-and-off Republican strategy that dates back to the 1968 Nixon campaign (not that the Democrats have been much better).

As a libertarian, I find some parts of Right on Crime problematic. While it's good to see conservatives factoring cost and unintended consequences into crime policy, the site largely leaves individual rights out of the discussion. For example, Right on Crime is big on drug courts, which require supervised treatment for nonviolent drug offenders instead of incarceration. Drug courts certainly are preferable to locking these offenders up with violent felons, but they are still a long way from recognizing the principle that the mind-altering substances we choose to ingest are none of the government's business. I realize that an endorsement of complete legalization is too much to expect from even a reform-minded conservative group, but legalization (or at least decriminalization) of marijuana is a step conservatives should be able to endorse as a way to make better use of criminal justice resources.

The site is also fond of religious rehabilitation programs such as Prison Fellowship, founded by former Nixon administration official Chuck Colson. It's true these programs have had success at rehabilitating ex-cons after release, and there is certainly nothing wrong with them when they are run privately. But an op-ed piece at the Right on Crime website, authored by former House Speaker Newt Gingrich and Prison Fellowship's Mark Earley, recommends a state role for these programs. They aren't clear about exactly what that would mean, but there would be serious First Amendment problems with a state-funded program that includes proselytizing to a literally captive audience. Illustrating those concerns, criminal defense attorney Scott Greenfield wonders on his blog whether Gingrich's support would be as enthusiastic if these groups were rehabilitating with Islam instead of Christianity.

But these are disagreements about how to rehabilitate convicted felons and how best to get drug offenders back into society—not whether we should bother rehabilitating them at all.  This is a marked improvement from the days when William Bennett, then the federal drug czar, deemed the beheading of drug dealers "morally plausible" and lamented that we still grant them habeas corpus rights. Right on Crime also seems to recognize the importance of keeping juveniles out of the criminal justice system, which breaks from traditional conservative scaremongering about juvenile "super predators" and support for "broken windows" policing, which introduced thousands of young people to the criminal justice system for petty offenses on the theory that tolerance for minor lawbreaking invites chaos. The site doesn't explicitly address the "broken windows" theory at all; a search for the phrase comes up empty.

Because of its interest in accountability, Right on Crime is enthusiastic about CompSTAT, the statistics-driven program that holds police captains responsible for crime in their precincts. But some recent reports from New York City suggest the program needs some tweaking to guard against the twin dangers of unnecessary police harassment and underreporting of serious crimes.

We also need accountability on the other side. There is plenty of pressure on police and prosecutors to arrest more, charge more, convict more, and incarcerate more. There is very little accountability when they go too far. There is a strong conservative case to be made for reform here. We need to make sure that the incentives for law enforcement personnel are properly structured. We also need to make sure there is enough transparency to identify abuses and enough accountability to ensure that the pressure to arrest and convict is properly balanced with fairness and a sense of justice.

One way to achieve this balance is by reforming the forensic science system so that forensic specialists are rewarded for good science and honest testimony, not necessarily for helping the state win convictions. We also need more checks on police and prosecutors, something that conservatives tend to resist. When it comes to politicians, bureaucrats, regulators, and public school teachers, conservatives have long recognized that a government job and paycheck don't magically transform ordinary people into high-minded altruists. Public choice theory tells us government employees tend to act in their own interests, and those interests often don't correspond with the interests of the public. Those same forces apply to police officers and prosecutors. Yet conservatives typically have argued for less supervision, scrutiny, and second-guessing of police officers, and more powers and less accountability for prosecutors. And if there is any interest group that rivals the teachers' unions when it comes to shielding public servants from accountability, it is the police unions.

These are more suggestions for Right on Crime than criticisms. The project has been up and running for only a week or so, so it's not fair to criticize it for what it isn't covering. The larger point here is that a generation of culture warring has locked much of the right into a mind-set that says the only principled criticism of the criminal justice system is from a position of more jails, more prisoners, more cops, and more executions. As a libertarian, I will always attach more value to individual rights than conservatives, who tend to put a premium on order. But a system that is alarmingly prone to wrongful convictions undermines order, both by incarcerating (or even executing) the innocent and by letting the guilty remain free to commit more crimes. Drug laws undermine order by creating criminal enterprises in low-income communities that wouldn't exist without a black market, by enticing cops into corruption, and by locking up millions of people for consensual crimes, imposing on them all the limitations that come with incarceration and a felony record. 

Libertarians and liberals won't agree with Right on Crime on all of these issues, but the project is driven by serious argument, thoughtful policies, and honest discussion. It's a refreshing and important addition to the public debate. I hope the big names who have lent the site quotes and endorsements will also provide some cover for Republican politicians and policy makers to consider heterodox positions. If that happens, for the first time in a generation we could have a real public discussion about crime.

Radley Balko is a senior editor at Reason magazine. This column first appeared at Reason.com.


Radley Balko is Senior Editor


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