Will The Tea Party Right Derail Criminal Justice Reform?

December 14, 2009

4:00 PM

Ross Douthat has a good column today, basically arguing that it's time for conservatives to say they were right about mass incarceration as a solution to crime in the '60s and '70s. Now, having declared victory, they can move on to healing the damage it has caused:

Mass incarceration was a successful public-policy tourniquet. But now that we’ve stopped the bleeding, it can’t be a permanent solution.
This doesn’t require a return to the liberal excuse-making of the ’60s and ’70s. Nor does it require every governor to issue frequent pardons. (A capricious mercy doesn’t further the cause of justice.)
Instead, it requires a more sophisticated crime-fighting approach — an emphasis, for instance, on making sentences swifter and more certain, even as we make them shorter; a system of performance metrics for prisons and their administrators; a more stringent approach to probation and parole. (“When Brute Force Fails,” by the U.C.L.A. law professor Mark Kleiman, is the best handbook for would-be reformers.)

My feature from the latest print edition of TAP deals partly with this shift in conservative thinking on the issue of criminal justice and the potential for reform. Frankly if Kleiman's book, which recommends emphasizing swift rather than severe punishment, gives conservatives cover to support policies that reduce the size of the prison population and its associated social and economic costs, then great. There's no mention in Douthat's column of the devastating and disproportionate damage that the "tourniquet" of mass incarceration has had on black people in this country, or the fact that establishing a corrections policy this draconian and punitive would have been impossible without exploiting racial fears, but that's hardly surprising. (Douthat does briskly brush aside the racial elements of the Willie Horton ad -- although Lee Atwater eliminated all plausible deniability years ago.) If conservatives can be persuaded to support more effective and humane criminal justice policies that reduce the suffering and damage caused by mass incarceration, I don't really care if they want to declare victory and pat themselves on the back first.

The problem is that part of the reason why there's an opportunity to do something meaningful on criminal justice right now is that it is no longer the issue it was when George H.W. Bush could hammer Mike Dukakis with Willie Horton. The news peg for Douthat's column -- the right's reaction to Mike Huckabee's pardon of Maurice Clemmons, the man who murdered four police officers several weeks ago -- has already shown us where the tea party right stands on mass incarceration: Giving a 17-year-old a 108-year sentence for aggravated robbery is just fine with them. Imagine how that opposition would harden if the Obama administration began to offer public support for the HOPE bill Reps. Adam Schiff (D-CA) and Ted Poe (R-TX) introduced last month.

They'll make the GITMO NIMBY movement look like a a hayride. After all, look what they've already done to Huckabee, who is ostensibly on their side. To his credit, Douthat recognizes that when he concludes that "the case of Maurice Clemmons may cast a long shadow over conservative politics, frightening politicians away from even the most sensible reforms." There would be something terribly bitter, but not all together ironic, about Republican presidential rivalries derailing the best chance for criminal justice reform in generations.

-- A. Serwer