Locked In? Conservative Reform and the Future of Mass Incarceration

Abstract

The dominant implication of the carceral state literature is that path-breaking change is impossible through ordinary politics, reducing the options to either acquiescence or a level of mass mobilization not seen in decades. Over the last decade, however, activists have generated a surge of agitation for carceral reform, especially at the state level. In a twist the scholarly literature did not anticipate, much of that energy is coming from the Right. The theoretical flaw underlying the scholarly pessimism is a focus on the way policies entrench themselves through positive feedback, without commensurate attention to negative feedback. We argue the balance of feedback is shifting to the negative side in the case of mass incarceration. To seriously shrink the prison population, however, conservatives will have to accept the construction of alternative government structures; liberals will have to accept that these will remain more paternalistic than they might like.

The Politics, Promise, and Peril of Criminal Justice Reform in the Context of Mass Incarceration

“…For example, after critiquing the modest steps taken by the Obama Administration and the US Sentencing Commission, Tonry (2016, p. 9-10) Although his case for comprehensive sentencing reform is exhaustive, Tonry does not offer a plan for motivating legislators to do better. As noted previously, Dagan & Teles (2014 are optimistic about the legislative and leadership capacity of conservative opponents of mass incarceration. The fact that the statutory reforms supported by "Right on Crime" groups do not entail a wholesale rejection of the "get tough" approach to sentencing does not trouble Dagan & Teles (2014), who contend that reforms aimed at low-level crimes can yield substantial dividends, as noted previously.…”

“…These reinforcing processes are sometimes referred to as positive policy feedback. By contrast, negative feedback undermines existing policy arrangements and the institutional arrangements that support them (Dagan & Teles 2014; see also Dagan & Teles 2015, Murakawa 2014). More-pessimistic assessments of the prospects for penal change tend to emphasize positive policy feedback mechanisms such as the political power of the institutions that benefit from penal expansion, whereas penal optimists highlight a variety of potential negative policy feedback mechanisms, including the recent emergence of conservatives seeking to get "Right on Crime" and the intensification of budget pressures in the post-Recession context.…”

“…A number of researchers have suggested that these fiscal pressures may enhance legislators' receptivity to decarcerative measures (Dagan & Teles 2014Green 2015). Research showing that state fiscal capacity is a significant predictor of the size of its prison population (independent of crime rates and other relevant factors) provides support for this claim.…”

“…Dagan & Teles (2014, p. 272) believe that it would: "While major decarceration will ultimately require reformers to face tough questions about shortening the sentences of serious offenders, there is much that can be achieved through less-controversial changes-what critics might call 'tinkering' with the carceral state." Dagan & Teles (2014) 6 it is also true that people convicted of violent crimes spend far longer than others behind bars. For example, PEW estimated that state prisoners convicted of drug and property crimes in 2009 spend an average of 2-3 years behind bars, whereas those convicted of violent crimes spend an average of 7.1 years in prison (PEW Cent.…”

“…More-optimistic accounts emphasize the significance of the recent mobilization of conservative reform advocates (Dagan & Teles 2014Green 2015;Travis 2014) and the political opportunities afforded by heightened fiscal concerns in the post-Recession period (Aviram 2015; see also Phelps 2016, Phelps & Pager 2016. By contrast, more-pessimistic accounts foreground the problem of path dependence, especially the power of institutions with a vested interest in mass incarceration (Gottschalk 2015;Page 2011a,b;Thorpe 2015), the ongoing invocation of the need to get even tougher on people convicted of comparatively serious crimes (Beckett et al 2016, Gottschalk 2015, Seeds 2016) and the challenge of harnessing the discretion of the criminal justice actors whose everyday practices notably impact penal outcomes (Cadora 2014).…”