07.03.11

The GOP's Born-Again Prison Reformers

While insisting that they haven’t gone soft on crime, Republican governors and other party leaders are framing solutions to prison overcrowding and punitive sentencing.

Back in the early 1990s, William Kennedy was a power player who toed the Republican Party line and put the likes of Ed Meese, Ronald Reagan’s tough-on-crime attorney general, on the cover of his Conservative Digest magazine. Then some business deals went south and he was convicted of racketeering and money laundering and spent 17 years behind bars (his first night in Colorado’s Ed Meese Detention Center, of all places).  Recently dozens of leading conservatives gathered at a private home in Virginia to welcome him back to society. Kennedy insists he was the victim of prosecutorial misconduct, but a bitter irony still overwhelms him. “I helped push the same laws that put me away all these years,” he told us in his first interview since his release in January. “I was a law-and-order conservative. What an idiot I was.”

His is not the only transformation. The party of Nixon’s 1968 law-and-order campaign, Just Say No, and the Willie Horton ad is now seeing a growing number of leaders tackling what once would have been political suicide: reforming the country’s overwhelmed criminal justice system. While the recent Supreme Court decision to free tens of thousands of California prisoners due to overcrowding has upset conservatives (Justice Antonin Scalia dissented strongly, describing the potential release of “46,000 happy-go-lucky felons”), the magnitude of the decision makes it even harder to pretend the U.S. doesn’t have a problem. And these days many conservatives are leading the charge for a solution.

Conservative governors in lock ’em up states are suddenly talking about rehabilitation and redemption, not throwing away the key. Gov. Nathan Deal signed legislation in April that opens the door to overhauling Georgia’s sentencing laws; Louisiana’s Bobby Jindal in January announced a partnership to help fix the state’s ballooning incarceration rate—the highest in the country. In Indiana, Mitch Daniels says he is fighting for legislation to reduce recidivism (nationally, 43 percent of offenders are back in jail within three years). And Ohio’s new Republican governor, John Kasich, is being feted by conservatives for pushing a prison reform bill through the state house in early May, calling the reform “low-hanging fruit.” Legislation that would keep more people out of prison has also recently passed in such right-leaning states as Kentucky, Arkansas and South Carolina.

Inside the Beltway it’s the same story. Newt Gingrich’s Contract with America once called for more prisons and tougher sentencing, but these days the presidential candidate is co-authoring passionate editorials about the need for “common-sense left-right agreement” on prison reform and “encouragement and love” for offenders who have served time. He’s joined other conservative icons like Meese, Grover Norquist, William Bennett and NRA president David Keene to pledge their names to the Texas Public Policy Foundation’s recently launched “Right on Crime” website, designed to make the rehabilitation of non-violent offenders and the end of skyrocketing incarceration rates the new conservative cause célèbre.

Just don’t say they’ve gone soft. With $52 billion a year spent on state corrections, prison costs have become the fastest growing budget category behind Medicaid. According to the Pew Center on the States, one in 31 Americans is somehow under the thumb of the criminal justice system. One in eight state workers and seven percent of most state general funds are dedicated to running prisons. With just about every state facing budget woes, prison reform–once untouchable—is hot, with the GOP uniquely positioned for the fight. “The Democrats are still afraid of a Willie Horton moment,” says Grover Norquist, who heads Americans for Tax Reform. “Everyone’s been terrified of being the person to legalize crack.” For reform to succeed politically, he says, it needs to be led by Republicans—“the Nixon in China phenomenon.”

It’s also a Texas phenomenon. The Lone Star State has adopted some of the most sweeping reforms of all, with its incarceration rate falling 9.2 percent and its serious crime rate down more than 10 percent between 2004-2008, according to the Texas Public Policy Foundation. Parole revocations are down 25 percent, and Texas is now seeing its lowest crime rate since 1973. If a rough-and-tumble cowboy state like Texas can pull it off, say reformers, others can as well.

Texas’s reforms didn’t come fast or easy. “I know what it feels like to beg for my life,” says state Senator John Whitmire, a conservative Democrat who in 1992 was robbed at gunpoint in his garage along with his wife and then 9-year-old daughter. He was the author of Texas’s famously tough penal code, which helped double the state’s prison population between 1993 and 2007. But he began to realize the system—his system—was broken. His grim personal experience gave him the bona fides not to look soft on crime. But in the effort to roll back his own policies he was missing a key ingredient: a Republican.  Enter state Rep. Jerry Madden, a conservative and an engineer by training. He looked at the over-packed prisons as he would a pipe about to burst. “There seemed to be two answers to this from an engineering standpoint,” says Madden. “Let ’em out the door faster, or slow ’em down coming in.” Texas culture, he explains, “doesn’t allow us to let ’em go” so he, along with Whitmire, chose the latter path.

With just about every state facing budget woes, prison reform–once untouchable—is hot, with the GOP uniquely positioned for the fight. ‘The Democrats are still afraid of a Willie Horton moment,’ says Grover Norquist.

In non-Texas lingo, that translates into efforts to treat low-level criminals in the community, not behind bars, and to shorten sentences. In 2005 they provided funding for probation departments to employ graduated sanctions (swifter and shorter punishments) and passed a 2007 set of budgetary reforms that helped the state avert a projected need of more than 17,000 new beds, which would have cost $2 billion over five years. Money went to better parole supervision, instant drug testing and diverting non-violent offenders into community programs and treatment centers.

“It is kinda man bites dog,” admits Daniels, who has been more than a little bit surprised by liberal support—including ovations in the New York Times—for his efforts to reform Indiana’s harsh sentencing laws (three grams of powder cocaine will put you away for 20 years, compare that to two years in Texas). “I’m fine having tough sentences, but ten times harder?”  Daniels sits just a few feet away from an Indiana hardwood conference table, artistically crafted by prisoners to display the state and its official seal. Some of his prisoners are caring for rescued thoroughbred horses, others are graduating from drug treatment programs that, he explains, are profoundly moving to watch. But Daniels also, while calling it a difficult decision, supports the death penalty in his state. “Let me make this clear, we make no compromises with public safety. But our sentencing is off the charts.” 

Daniels, who many Republicans had hoped would run for president, gets his hair cut by a felon. “I never ask William what he did, I don’t care. He’s a good man. We believe in redemption in this state.” When Daniels took office he saw were people who shouldn’t have been incarcerated in the first place getting pushed in and out of prison quickly: “We had them there just long enough to get fingerprinted and be introduced to some real criminals.” He says state facilities cost $55 per prisoner each day, whereas treating non-violent offenders within the community costs between $10 and $30. One critic, Vid Beldavs of the Indiana chapter of Citizens United for Rehabilitation of Errants, questions Daniels’s commitment to reform after recently failed legislation, but adds: “This failure may simply demonstrate how deeply ‘tough on crime’ is embedded in our political culture.”

Many conservatives balk at the notion that fixing prisons is all about the bottom line.  “This is a moral issue,” says Pat Nolan, vice president of Prison Fellowship, which ministers to prisoners using God, as explained on its website, “to overcome evil with good.” He describes watching conservatives like Norquist and Keene testify against mandatory minimums or for last year’s Fair Sentencing Act, which corrected harsh disparities in penalties between crack and powder cocaine, as “electrifying.” “It emboldened Republicans who were concerned about speaking out that they wouldn’t be alone.”

Keeping non-violent offenders out of prisons serves of other conservative interests: keeping families together (the more than 2 million Americans are currently in prison don’t pay child support or income tax payments, and mothers are increasingly incarcerated), getting more assets back to victims (prisoners pay almost nothing compared to those on probation), and keeping the streets safe by preventing non-violent offenders from hardening into real criminals while in prison. There are the Christian principles of forgiveness and redemption, and—of course—limiting government overreach (there are more than 4,000 federal criminal laws currently on the books) and what Norquist calls “creeping centralization.” Marc Levin, of the conservative Texas Public Policy Foundation, likes to say “there are 11 felonies in Texas just related to oysters. A woman in Texas was arrested for an overdue library book. We like arresting people but it’s getting kind of expensive.”

Last December, members of the Right on Crime campaign launched a media blitz, particularly on conservative Christian shows and Fox News. “We’ve traditionally taken our lead by looking at what the liberals want and doing the opposite. That’s often a good way to go, but not always,” says Norquist. “We don’t have to reflexively be against what the idiots are for.”

For several in the group, it’s personal. Keene, the longtime chairman of the American Conservative Union and recently minted president of the NRA, has a son serving 10 years for a road rage incident. Nolan was a “tough on crime” California state legislator who consistently voted for stronger prison sentences until he found himself serving time for an improper campaign contribution. “I had supported laws to get drug kingpins off the streets, but in prison I was surrounded by only small fries. It was ridiculous.” Another member of their group, conservative fundraising pioneer Richard Viguerie, has a friend with a heroin and bank-robbing habit. His friend deserves time, he explains, just perhaps not twice the sentence simply because he crossed a county line.

For conservatives, says Nolan, there has been no break from the need to keep violent criminals off the streets, just a recognition that America has gone too far in its frenzy to lock up non-violent offenders. “This is not—open the prison doors and let all the captives free,” says Nolan. “We need prisons, we’ve just overused them.”