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What Republicans' stunning reversal on criminal justice tells us about politics

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Cell block.
Cell block.
Jerry-Rainey /

Sometime later this year, the Republican-led House will probably vote on bipartisan criminal justice legislation, legislation that will push back against what a growing number of Republicans now believe is the overcriminalization of America. If the legislation becomes law, fewer Americans will be imprisoned, and those who are imprisoned will serve shorter sentences.

This is, in many ways, a remarkable conversion for many Republicans, a conversion that House Speaker Paul Ryan recently spoke publicly about in his remarks on the "state of American politics." Here's Ryan:

I have become more of a late convert to criminal justice reform. Criminal justice reform is something I never thought about when I was younger in Congress. It's something that I thought, "Just be tough on crime, be tough on crime." And I think we as Republicans, and Democrats, kind of overcompensated on this in the 1990s. And now that we see the path of the pathologies that have come from it, I think we gotta go back and fix that. That is why as speaker — I talked to [Rep.] Bob Goodlatte [R-VA] about this last night — we're going to bring criminal justice reform bills, which are now out of the judiciary committee, to the House floor and advance this, because what we're learning is and what I learned, I didn't necessarily know this before, is redemption is a beautiful thing. It's a great thing.

How does something like this happen? And what, if any lessons, should we learn from this?

The right's transformation on criminal justice is a story that David Dagan and Steven M. Teles tell in their forthcoming book Prison Break: Why Conservatives Turned Against Mass Incarceration, and preview in a National Affairs article, "Conservatives and Criminal Justice." They've also written about it in a New America paper.

The short version of the story goes something like this: In the 1970s, Republicans saw political gains in being the party of law and order, championing increasingly tough-on-crime policies. But by the 1990s, Democrats had come around to being tough on crime too. By the late 1990s, "this convergence on law-and-order was widely perceived to have squeezed the juice from the issue," write Dagan and Teles in their National Affairs piece. "Meanwhile, the facts on the ground were changing rapidly. Starting in the early 1990s, crime began to decline precipitously."

Eventually, public attention caught up with the reality, particularly after terrorism displaced street crime as the premier top-of-mind fear. Meanwhile, on the political right, there was "a new generation of politicians who had not come of age politically in the tough-on-crime crucible of the 1980s who were more devoted than ever to anti-statism and fiscal restraint." For them, the giant prison system was yet another area where big government had overreached, wasting taxpayer dollars.

Meanwhile, genuine Christian conservatives, most prominently Chuck Colson, began to argue that, as Dagan and Teles put it, "true Christianity required faith in redemption." Therefore, rehabilitation was possible; it was inhumane to just warehouse prisoners, as many tough-on-crime Republicans had previously done. Over time, they won prominent converts, including Ronald Reagan's attorney general, Edwin Meese III, and later Newt Gingrich.

And when Texas faced a crisis of prison overcrowding in 2007, conservatives in Texas had a genuinely conservative solution ready to go: Stop locking everyone up, especially those committing only minor crimes; focus more on rehabilitation; and save taxpayers millions while reducing big government.

These reforms have now percolated up to the national level, where they passed out of the House Judiciary Committee last fall, with Goodlatte and liberal stalwart John Conyers (D-MI) teaming up.

Dagan and Teles argue that progress happened because this issue was not electorally salient for an extended period. Activists worked quietly for a long time, out of public view. As Dagan and Teles explain, the reformers "had a small group of deeply committed, ideologically credible conservative leaders, many of whom had been engaged with the issue well before it became a fashionable cause." They also secured some long-term funding outside of the conservative movement.

This, of course, cuts against the conventional advocacy wisdom: "If only people understood what was happening, they'd get so angry that they'd all agree to do something." This advocacy wisdom may not hold in a polarized time, when salience means forcing parties to take competing positions on an issue, thus effectively preventing progress.

But perhaps most significantly, Dagan and Teles note that the politics of criminal justice changed significantly. When pro-reform conservative activists had finally built a genuine case for reform, "they were no longer asking Republican elected officials to give up a winning issue." The tough-on-crime constituency had vanished.

Certainly, these conditions are not super common across issues. New America's New Models of Policy Change project looked for these conditions in a few other issue areas, but the criminal justice issue seems to be somewhat sui generis. Few issues combine extended periods of low public salience and patient sources of foundation funding to allow for full gestation. It's also rare that a political party abandons a political position that once brought it electoral success. Far more common is that parties take on positions to appeal to different constituencies, and those constituencies stick around.

Still, there is a larger point here: Politics does change, and sometimes in unexpected ways. Few observers of American politics in the mid-1990s, when Bill Clinton pinned his 1996 reelection in part on putting 100,000 more police on the streets, would have anticipated that two decades later, a Republican speaker of the House would be promising to lock up fewer criminals, asking for more compassion and more redemption. Yet here we are.

And while it's always far easier to explain why something happened by looking backward rather than projecting why something will happen in the future, meaningful policy changes and reversals can and do happen. And they are most likely to happen when committed activists understand that no arrangement in American politics is ever permanent, and that politics is a complex system in which no trend or pattern lasts forever.