States don’t get any bluer than California, so last November’s vote adopting Proposition 47 – reducing six felonies to misdemeanors – could easily be taken as evidence that liberals and Democrats are leading the nationwide de-incarceration movement.
And that stands to reason. In image, at least, conservatives carry the tough-on-crime banner while liberals favor lenience and prefer rehabilitation to incarceration. The Obama administration won federal sentencing reforms. Attorney General Eric Holder announced that in 2014 the federal inmate population dropped – the first net reduction since 1980. Liberal officials, liberal policies, right?
So the American Conservative’s Feb. 3 Q. and A. with Mark Earley, a Republican Virginia lawmaker and attorney general and now a criminal defense lawyer, was a useful reminder that much of the real thinking and action on criminal justice reform has come from the right. Interviewer Chase Madar nailed the essential dichotomy in conservative politics by noting that conservatives “tend to value order and authority but also limited government.” There’s an obvious tension there – but it’s nothing new. Conservatives who once lined up behind the law-and-order part of their creed have begun questioning what mass incarceration means to the concept of limited government.
"I saw that in the ’80s and ’90s, criminal-justice policies were driven more by what constituents wanted, what worked in the short term," Earley said in the American Conservative. "But if you do that long enough, then all your constituents wind up having family members in jail."
The Times has noted with approval the reform-minded approach from conservatives on prisons and criminal justice reform.
“Many of the progressive innovations in criminal justice are coming not from supposedly liberal states and officials, but from conservatives who are determined to focus on cost and outcomes while keeping justice in the forefront,” the Times wrote in a 2011 editorial, just after criminal justice realignment took effect in California.
“The group Right on Crime is setting the pace in states such as Texas. At the same time, leaders on the left, in California and elsewhere, have been conspicuously quiet about making realignment work.”
Three years later, a few elected Democrats – but only a few – felt comfortable endorsing Proposition 47. Meanwhile, the Times ran an op-ed co-authored by Republican former House Speaker Newt Gingrich, one of the founders of Right on Crime, urging passage and pointing out reforms made in conservative states like Georgia, South Carolina and Mississippi.
“If so many red states can see the importance of refocusing their criminal justice systems, California can do the same,” Gingrich wrote.
Relatively few of California’s elected Republicans have chosen the red state path of seeing criminal justice reform as central to their limited-government creed. For the most part, the law-and-order approach prevails among Republican lawmakers in this most liberal of states.
So one of the most important aspects of the sweeping approval of Prop. 47 at the polls on Nov. 4 may be the signal it sends to California lawmakers, Democrats and Republicans alike: Update your view of the electorate. This is not 1990 or 2000. It’s OK to do thoughtful criminal justice and prison reform. You won’t automatically be punished at the polls for saying “no” to a new prison or a new get-tough-on-crime measure. There are good reasons, rooted in conservative as well as liberal politics, to focus on restorative justice and rehabilitation rather than simply retribution.
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