AMERICAN ENTERPRISE INSTITUTE

PRISON BREAK: WHY CONSERVATIVES TURNED

AGAINST MASS INCARCERATION

INTRODUCTION AND MODERATOR:

SALLY SATEL, AEI

PANEL DISCUSSION

PANELISTS:

HEATHER MACDONALD, MANHATTAN INSTITUTE;

HAROLD POLLACK, UNIVERSITY OF CHICAGO;

VIKRANT REDDY, CHARLES KOCH INSTITUTE;

STEVEN TELES, JOHNS HOPKINS UNIVERSITY

10:30 AM – 12:00 PM

TUESDAY, MAY 24, 2016

EVENT PAGE: http://www.aei.org/events/prison-break-why-conservatives-turned-

against-mass-incarceration/

TRANSCRIPT PROVIDED BY

DC TRANSCRIPTION – WWW.DCTMR.COM

SALLY SATEL: Welcome everybody. My name is Sally Satel. I’m a resident

scholar at AEI, and very excited today to have our book panel on a fascinating book by

Steve Teles and his coauthor, who will join us for Q&A later, David Daga called “Prison

Break: Why Conservatives Turned against Mass Incarceration.”

The book is about the embrace of prison reform by the right and the story really of

what Steve and David call trans-partisanship, not quite the same as bipartisanship, as

they’ll explain, and how that’s led to new agreements and new legislation regarding who

and how to imprison. Also, seductively, the book touches on how to generate policy

breakthroughs in a time of a great political polarization — something like we have today.

Clearly, it’s a very timely issue of legislation on sentencing reform is winding its way

through — tumultuously, through the Hill. And very recently, in fact, FBI Director James

Comey made comments that, frankly, strike me as quite accurate but are certainly

inflammatory, about the rising crime rates. So all of that’s going on in the backdrop.

So today we’re going to start with a presentation by Steve on the book’s major

themes, the dynamics of the right on crime movement. Steve is a professor of political

science at Johns Hopkins University, also a fellow at the New America Foundation,

authored several books, and is the editor of the Oxford University Press Books series on

contemporary American political development. He just did a great Bloggingheads with

Glenn Loury on “Prison Break.”

The book officially comes out June 1st, although we have some for sale here. And

when it comes out, I know there will be fantastic reviews but, right now, there aren’t any

yet because of that, otherwise I would tell you about them immediately. But I found the

book to be immensely insightful, with lessons that go well beyond criminal justice

reform. And I should say these are all very abbreviated biographies I’m giving. You can

find much longer credentials online or — I guess you didn’t get a packet but whatever

information you have.

David Dagan is a doctoral student at Johns Hopkins and Steve’s coauthor. One of

his current projects include a study of capital punishment in advanced democracies. And,

as I said, he’ll join us for the Q&A. That’s his seat.

And then, responding to Steve and, implicitly, David, our three esteemed social

scholars who have given a lot of thought to diagnosing and improving our criminal

justice system. And they are in order Vikrant Reddy, who is a senior research fellow at

the Charles Koch Institute. Before that, he spent nearly five years at the Texas Public

Policy Foundation and had the great foresight to be present at the creation literally of the

Right on Crime movement. He was the original manager of that initiative. He also served

as a law clerk to the Honorable Gina M. Benavides of the 13th Court of Appeals in

Texas.

Harold Pollack is an old friend who puts science in social science. He is the Helen

Ross professor at the School of Social Service Administration at the University of

Chicago, also co-director of the University of Chicago Crime Lab. Published widely in

academic and popular venues on the interface between poverty policy and public health.

And Heather MacDonald is the Thomas W. Smith fellow at the Manhattan

Institute and a prolific contributor, as many people know, to the City Journal and the

Wall Street Journal on topics including higher education, immigration, race relations and

policing, which makes her one of the bravest people in the United States. Has a new book

coming out next month called The War on Cops and today has a wonderful op-ed in the

Wall Street Journal that everyone should read.

So everyone will speak. We’ll have Q&A and then there are books. Thank you

all. Steve.

STEVEN TELES: All right. Well, thank you so much, Sally, for inviting me to do

this and for — as good a panel as I could ever hope for and in some ways the most

terrifying. I think you know what I’m talking about.

So I did want to recognize David Dagan, who’s my full co-author in the book. In

fact, it has his name first so just to recognize that we should say Dagan and Teles when

we talk about the book. So, also, I should say even — I even have like long-lost graduate

students who like showed up for this, which is wonderful.

So to start out with, I want to kind of put you in a way-back machine. Again,

some of you, the younger of you were not even born when I started college in

Washington, DC, in 1986. Nineteen eighty-six was also the date, the year that the

overdose death of basketball star Len Bias sent Washington into a full-blown drug panic.

At the time, Newt Gingrich, a Georgia congressman, was circulating a memo

calling for an assault on illegal narcotics on the scale of World War II, literally on the

scale of World War II, quote, “A decisive, all-out effort to destroy the underground drug

empire.” You can see some elements of Newt Gingrich’s rhetorical style have maintained

some stability. “An incremental approach,” Gingrich said, “such as the gradual American

escalation in Vietnam would be doomed to failure. Americans would not tolerate another

long grind. They would back the drug war only if it was massive and swift, aiming at

victory within three years.” Hard even to imagine what that would constitute. His

conclusion, quote, “We must focus the total resources necessary to win a decisive victory.

One too many won’t be a big waste and one too few will lead to defeat.” This gives you a

sense of the kind of rhetoric that was circulating back in 1986.

Gingrich’s close ally, Grover Norquist also saw the political potential in waging

the crime war. As the Anti-Tanks Act was argued in 1993, the collapse of the Soviet

Union had removed a threat that led Americans to crave tough leadership, a key

Republican advantage. But Norquist argued as the worldwide struggle against Soviet

Imperialism faded, another issue began to emerge that might well replace it in the

conservative arsenal — crime. Just as Democrats had been unable to stand up to the

Soviets, Norquist wrote they were uncapable of taking a, quote, “Sensible stand on stiff

sentencing and more prisons.”

Today’s conservative positions could not be more different. Norquist now, quite

publicly says that conservatives can no longer afford to direct their critique of

government only at their traditional targets. Quote, “Spending more in education doesn’t

necessarily get you more education. We know that. That’s obvious. Well, that’s also true

about national defense. That’s also true about criminal justice and fighting crime.”

At the same time, Gingrich now 25 years removed from his drug war memo was

also striking a decidedly new tone. Quote, “There’s an urgent need to address the

astronomical growth in the prison population with the huge cost in dollars in lost human

potential,” he declared in 2011. The criminal justice system is broken and conservatives

must take the lead in fixing it.

Activists like Norquist and Gingrich have decided that caging Americans should

become a solution of last resort, not the default approach to crime. Stiff sentencing and

more prisons has turned into smart sentencing and less incarceration. Conservatives once

treated prisons as exempt from their critique of big government. They fell over

themselves to defend prison guards and wardens, stripped out services for prisoners and

took their cues on sentencing policy from prosecutors. Many of these same conservatives

and their successors are now lining up to challenge the people who run prisons and

express sympathy for those behind bars. Most important, a large number of conservative

states have started to rethink their scale of incarceration — Georgia, Texas, Mississippi,

even Alabama. The sluggishness of reform in Congress is now the outlier.

The subject of our book, simply put, is how did this shift happen? How did the

lead conservatives like Gingrich and Norquist change their tone? How did the reddest of

red states moved from jacking up their prison numbers to cutting them down? And, more

generally, how do parties change position as a general manner and might there be other

opportunities for left-right cooperation in our polarized times?

So how did we get into this position in the first place? How did we get into the

scale of what some call mass incarceration? Well, the growth of incarceration certainly

seems to have generated strong path-dependent dynamics; that is, initial moves toward

increasing incarceration only made it easier to keep going further. On this, left authors

like Michelle Alexander have gotten it right. What are some of those dynamics? Well, the

first thing is politicians learned how to use crime to get elected, right? Once they started

building more prisons and then running one having built more prisons and running

against their opponents for not putting enough people behind bars, that got sort of hard-

wired into how conservatives started to run for office, to the point where political

consultants would simply automatically sort of fit that into the box. When they were

putting together a kind of campaign in a box for a candidate, they would put the tough on

crime part in there to the point where people didn’t even really think about it seriously. In

that sense, it became part of the core technology of getting reelected.

Second, advocates, many of those who we might have even thought of along the

left shifted to the crime frame for various different kinds of issues. Marie Gottschalk has

written about this, how victims organizations, many of whom didn’t really initially want

increases in incarceration, they wanted services, they wanted other kinds of things, when

they found they weren’t really getting that but they were getting leverage on increasing

incarceration, they moved toward pushing for that. Bidding wars broke out in

legislatures. Once you started realizing that voters were really concerned about crime,

they became — there became an almost inexorable move to continue to want to see how

far to the right you could go, right? Conservatives would move to the right, they would

get sort of strategic pursuit by Democrats. Republicans would then want to keep the

space between them and Democrats, they’d keep moving the bar over. And you saw that

dynamic in multiple different crime bills.

Next, interest groups built up around the issue, right? You built more prisons, you

got more prison guards, they became part of the lobby for building more prisons and then

you just, you know, rinse and repeat. And in some sense, the valorization of prison

guards as protectors of citizens became kind of oddly rooted into how conservatives

thought about prisons, even though, again, prisons are government, right? But in many

ways, conservatives not just in this area but also with police and other areas in the

military sort of exempted all these other areas of government from their critique of the

state and that helped generate more and more incarceration, right?

So these are the parts of building up prisons that made this process what political

scientists call path-dependent, right? Once we started going down this direction, there are

very strong incentives to continue to do that. But at the same time, this growth in mass

incarceration was creation negative effects that might have acted as a kind of negative

feedback, right?

One is high cost, right? Prisons are enormously expensive. In many states, they’re

among the — in almost every state pretty much, they’re among the highest expenses and

the ones that are most under the control of the state, right? In most states, Medicaid is

only in a very limited way at this point under the control of the state because it’s a

federal-state matching program. So high costs are a kind of form of negative feedback.

Recidivism, especially increasing recidivism could be interpreted as a sign that

something wasn’t going right; racial disproportion and the growth in state and public

employees, right? From the point of view of a conservative, you would think the growth

in state and public employees would be a sign that something was going wrong. It would

be a signal that they should recognize that could have been used to question its growth.

So why did these negative signals not sort of catch on especially among

conservatives, right? Well, one argument we make is political identity — that politicians,

once they — especially conservative politicians, once they branded the conservative

movement with the idea of being in favor of being tough on crime, that led them to

systematically filter out information that this growth in mass incarceration was creating

negative feedback. And so even as this information built up, politicians continue to

systematically filter it out. And so long as it was working politically, the incentives for

filtering out that information were very strong, right? So long as voters were saying that

this was among their most important issues, most working politicians are not going to pay

very close attention to the negative effects of what’s putting bread and food on their table,

right?

So the question for us is what are the conditions under which politicians who

previously filtered out information of the negative effects of mass incarceration because

they were both identity appropriate, they were what conservatives thought, and because

they were working for them politically, why did this change, right? The most important,

again, I think of structural features was the decline in crime in public fear. If you go back

to 1996 when I started college here in GW, crime was out of control. It was having

devastating economic effects, right? Many of you may go down to 9th and G and Gallery

Place and those areas, right, you know, they go to museums and they — you know, what

an amazing, you know, luxurious place Washington, DC, is, right? I got mugged coming

out of the 930 club at 930 F Street when I was a kid in 1987, and that would have been a

fairly normative behavior to happen at night around the 930 club, right?

Now, the decline in crime has also been followed by a massive decline in the

priority of the voters but many voters will still say things like, oh, I think crime is going

up. But when you ask them, what are the most important issues for them, what are the

ones that they’re most concerned about, crime is now — is way out of that top list. In

some polls, it’s even hard to measure, right? Second, Democrats shifted pretty close to

the Republican position, right? And so there was — this issue was really good for

Republicans so long as they could keep distance from the Democrats, but once the

Democrats moved that far over, it was hard for them to do that. In some sense,

Republicans were too successful, right? They liquidated the crime issue by forcing

Democrats over to where they were, right?

Third is Republicans — and this is, again, a paradoxical effect, but Republicans

have moved to the right, right? They’ve become more anti-statist. And as they’ve become

more anti-statist, that’s had lots of implications for regulation and the ability to get, you

know, left-right coalitions on welfare state issues, but it’s made them more skeptical of

prisons. It’s made them more skeptical of the militaries as we’ve seen from recent

debates around the Pentagon budget, and this has made them more open to being

skeptical of prison administrators and what they do.

Polarization of states, right? Lots of these states that used to be purple states, they

used to have — go back and forth between Democrats and Republicans are now solidly

owned by the Republicans. Texas is the best example of this, right? It used to be every

four years, whoever was on the out would run against the incumbent and say that they

weren’t building enough prisons, right? Texas, literally, every four years — Ann

Richards ran against her predecessor saying that they weren’t being tough enough on

crime. She built a lot of prisons. Then George W. Bush ran against Ann Richards saying

she wasn’t tough enough on crime, wasn’t building enough prisons, right? Rinse and

repeat and you get an extraordinarily high prison rate.

Well, Republicans now own Texas, right? And one thing that means is they don’t

need the issue, right? There’s no reason to run against Democrats as being soft on crime

because they own the state legislature, they own the governor’s mansion. And, therefore,

they also own the issue, right? And now it’s a lot easier for them to be forced to deal with

the tradeoffs that are involved with the levels of incarceration that we have, right?

So all that’s left, therefore, a lot of these structural features that bias conservatives

toward mass incarceration have gotten cut away, right? All of the things that in a way

pushed the playing field toward them taking a tough-on-crime position had been pushed

away. The only thing really that’s left was the anchoring of being tough on crime in

conservative identity, right? And what that meant was someone needed to do the work of

convincing conservatives that the association of being tough on crime with conservatism

was no longer an obvious attachment, right?

And that gets to the last feature I want to talk about, which is this concept of

identity vouching, right? Someone needed — once conservatives were ahead, their ears

opened because, you know, they owned lots of red states, because they’d become more

anti-statist for all these other reasons, someone had to convince them that being smart on

crime or right on crime, to use their term, was the right position, right?

So the first fact we talk about in the book is to say that when it comes to

processing information like the negative effects of incarceration, most people don’t

process that information by asking whether it’s true, at least subconsciously they don’t,

right? They ask, is this the kind of thing that a person like me believes, right? That’s how

they process information. They process information through identity, and, therefore,

they’re going to process information about the fact that they need to change position also

through identity, right? This is the mistake I think lots of liberals have made on issues

like gun control, right? It’s simply hammering people over the head with more facts,

right, taking a study and hitting them in the head and say — assuming you hit them hard

enough with enough studies, right, it will shoot their brain and they’ll — you know,

they’ll move to the right position, right? But (bludgeoning ?) more information often has

the opposite effect, right? It actually pushes them toward the — back toward the position

they have, back toward their tribal identity, right?

So the essence of political entrepreneurship in conditions such as this is to make

the new information identity appropriate, right? Well, how did conservative reformers do

that, right? Well, first of all, I think in our story, it starts with Charles Colson and then Pat

Nolan, prison fellowship, right? Their role really was to get out there a person who had

unquestioned ideological identity, right? And that’s the important thing about Nolan is on

everything else — and especially Colson, everything else other than prisons, right, you

could not get to the right of Chuck Colson, right? You know, if you plan the fire bombing

of the Brookings administration, right, that pretty much defines one pole, right? And,

again, especially Chuck Colson’s positions on abortion, lots of other issues, meant that no

one could assume that he was simply a sort of closet liberal who was kind of borrowed in

from the inside. It was a kind of quisling, right? And so the fact that he was taking these

positions played an enormous role.

In our story, Texas passing reform in 2007 has an enormously important role

because, again, Texas in a way, like Colson in a way defined something identity wise,

right? They defined, you know, as far as you can get to the right on prisons and

incarceration, right? And then, once they do that, once you have Texas having made

reforms, once you have at least some of these national conservatives like Gingrich,

Norquist, Colson, who are willing to stand up and say, you know, this is — you know,

it’s not obvious that being tough on crime is the position that someone who’s a

conservative should take.

This idea then starts spreading through a number of diffusers, the Texas Public

Policy Foundation and Vikrant, Right on Crime, plays a very important role in getting a

huge number of conservatives to sign up for an agenda, not even super specific if you

look at the original Right on Crime statements, right, but enough to make it clear what the

right direction was, right? The State Policy Network and ALEC start diffusing these ideas

into states, especially states with lots of new legislators, right, who hadn’t grown up in

the tough on crime era. And because in some sense they were coming from the right, they

were becoming more anti-statist, people needed to persuade them of why building more

prisons was the conservative position, right? You would have had to actually explain that

to them as opposed to explaining to them that, you know, being more skeptical of prisons

was the same position they had on everything else government was doing.

So those organizations all had the ability to certify this as the conservative

position, right, especially for conservative politicians and to some degree rank and file,

who have very strong attachments to the idea that they’re conservative but don’t

necessarily know what that’s supposed to cash out on individual positions, right? That’s

where people look up to elites — at least up until now, right?

So the future, really briefly, right? So there’s been impressive changes in state

after state. Georgia, for example, has cut the incarceration rate for African-American men

by 20 percent under the Republican Governor Nathan Deal. Between 2010 and 2015,

South Carolina, of all states, has cut its prison population by almost 10 percent and closed

two prisons. Alabama and Mississippi both passed ambitious reforms in 2015. And

Mississippi, Texas, and Georgia have now all gone through multiple waves of reform,

right? So this is now suggested these are not simply one-off things that happen for

idiosyncratic reasons but these are an institutionalized process of reform in many of these

states — institutionalized in fact to the point where in Georgia, there’s a commission that

regularly simply recommends new changes every couple of years. In that sense, it’s really

hard wired, right?

The last couple of things to say. The inability of Congress, however, to pass

reform shows that the conservative reform movement has not been entirely successful.

Politicians like Tom Cotton, Jeff Sessions still seem to believe that some of the old tough

on crime rhetoric still has legs. Also, Republicans in states like Virginia, purple states,

haven’t really signed up for reform. If you look at what Republican state legislators in

Virginia are saying on incarceration, it sounds like they got put in the way-back machine

to 1986, and that’s again because in purple states, right, you’re less likely to want to give

up on any of these issues when, you know, if your state legislature is holding on just by

one or two seats, right?

Finally, Trump — I know we should all just — we’re all tired of having to even

say that word, but Trump obviously is in some sense a danger to this shift among

conservatives. It’s possible that — clearly, his campaign is organized much more on what

you might think of as an order/disorder axis than a statist/anti-state axis, right? In that

sense, he’s got more to do — I’ve seen people refer to Trump as a Morton Downey Jr.

Republican. And there’s a lot to that, right? He definitely reminds you of an era in which

anti-statism was less of a sort of strong part of conservatism and a kind of fear of disorder

was.

And, finally, and I’m just saying this in part to try and protect myself, inoculate

myself against Heather slightly, if many of these changes don’t work and if crime rates

go up, that will make it really, really hard to keep the momentum for conservatives being

in favor of a reform in incarceration, right? If it turns out that we don’t have functioning

alternatives to incarceration, right, and many of the people that we let out end up

committing terrible new crimes, that’s going to make it hard to maintain the momentum.

If crime rates really do continue to go up over the next few years, if we don’t find ways to

police inner cities more effectively and keep crime rates down through that, there’s going

to be a lot of incentive for politicians to try and keep them down through continuing mass

incarceration. So that’s what I’ve got.

MS. SATEL: That’s great.

Vikrant.

VIKRANT REDDY: Well, I’m setting my alarm for 10 minutes since you told me

to try to stick to 10. So it’s a great book. David and Steve wrote a wonderful book. I

really enjoyed it. But that’s not the highest compliment I can offer. The highest

compliment I can offer because this is in many ways a history book, is that it’s accurate.

And I know that because I lived it. I was one of the people who was very deeply involved

in the movement that they’re discussing. I grew up in Texas. I grew up in Fort Worth and

I remember the campaigns of Bill Clements and Ann Richards and George W. Bush. And

I know that it was all about being tough on crime and building more prisons. And I had

some vague sense of what happened in Texas in 2007, although at the time I was an

attorney, a civil litigator, so I wasn’t following those things extremely closely. But,

briefly, this story is told in the book.

What happened was that the state was growing leaps and bounds and legislators

were told by a budget-crunching organization, the Legislative Budget Board that it’s

wonderful that so many people are moving to Texas, are offering all this opportunity but

more people inevitably means more prisoners and you’re going to have to expand your

prison bed capacity. And they were told that by the year 2012, they would need more

prison building doing this year after year after year, but now another 17,000 prison beds

at a cost of $2 billion. The legislators finally blanched at this a little bit. In fact, the

speaker of the House Tom Craddick said to his chairman, don’t build new prisons. They

just cost too much money. I know that we’ve got a budget surplus, but I’m interested in

pushing a tax cut. I want to do everything we can to not have to spend the money.

So the legislators started looking for alternative possibilities. Instead of spending

the $2 billion, they settled on spending $240 million on shoring up probation, parole,

drug courts, which we can talk a bit more about later, Steve. We had an interesting drug

courts conversation last night. And the bottom line is just making community supervision

stronger in the state of Texas. That was the theory. They applied it. Years went by. And

by the time 2011 rolled around, Texas was actually in a position to shut down a prison,

and then in the year 2013 they shut down another two. So this is Texas. This is the

ultimate tough on crime, hang them high state. I mean, we did polling on this at the Texas

Public Policy Foundation. Texas’ brand, even more than what Texas achieved, really

went very, very far.

So the Texas Public Policy Foundation, the think tank in Austin which is involved

in free market advocacy, they were working on this issue. They were really the only think

tank in the entire country, state level think tank to be working on these matters. And I had

a friend from college named Marc Levin. He’s a big character in this book, who called

me up when I was practicing law in Dallas. And he said, I want to — I’m good with puns

and I’m going to launch a campaign called Right on Crime, and I want us to go all over

the country and I want us to walk into hearing rooms in Mississippi and Alabama and

Georgia and I want us to tell people there that if Texas did it, anybody can do it. And that

was the message.

And Marc and I worked hard to put together this Right on Crime campaign, the

statement of principles which you guys can access, RightOnCrime.com., and you will see

some really extraordinary names on the list. Newt Gingrich is on the list. Grover Norquist

is on the list. Jeb Bush is on the list. Ed Meese, an icon of Reagan era tough on crime

thinking. And that was deliberate. I mean, we went to find the strongest possible

conservatives that we could. You know, Chuck Colson’s name is at the very top of that

list. And Chuck Colson is trusted on criminal justice, as Steve said, not necessarily

because he’s strong on criminal justice but because he’s strong on the Second

Amendment and because he’s strong on pro-life issues, and because he’s strong on this

whole constellation of other issues that are important to conservatives and people knew

that he could be trusted — that he wasn’t just a wishy-washy moderate.

So that was the Right on Crime campaign. And took it all over the country. And,

as Steve noted, it has been, I’m happy to say, even though I’ve since left, my colleagues

are still doing a wonderful job. It has been successful in Georgia, in South Dakota, in a

number of very deeply red states. And at the state level at least, the conservative thinking

on criminal justice has just — has shifted 180 degrees. It’s really very, very remarkable.

And Texas is now enjoying the lowest crime rate it’s had since 1968.

So what’s remarkable is that you have to be very careful — there’s probably a

few social scientists in the room — you have to be careful about causation/correlation,

just because probation got better and prisons closed down does not mean that it caused

crime rates to drop. Crime rates have actually been dropping in states all over the

country. They’ve really been dropping all throughout the Western Hemisphere for about

two decades now. But what the Texas example did show is that it’s not essential to build

more prisons and more prison beds in order to get drops in the crime rate. So there are

things that you can do. There are things you can pursue and through community

supervision that will help your process.

And, you know, these are kind of academic arguments that we’re making but I

think Steve is right: At the end of the day, the academic arguments came second. The first

question was, who’s making the argument? And they had to see that the argument was

being made by strongly trusted conservatives. It was being made by TPPF and ALEC and

SPN, and so far it’s been very successful.

But I think I also want to look a little bit towards the future because as I was

reading the book, I was reading it obviously in the middle of what has been a very

extraordinary political season in the United States. And I got to thinking, well, Steven

and David have proposed a model here that is really based on trust in elites. When the

elites all shift in a certain direction and change their mind and start saying, this is the way

to do things, everybody else falls into line. But in the recent political season, really on

both sides of the aisle, we’ve seen an extraordinary number of people just completely

ignoring the elites. It did not matter what elected officials did in terms of endorsements. It

did not matter what newspaper editorial boards did in terms of endorsements. It was just

completely irrelevant.

And I don’t know the answer to this, but my question is is there a new model of

politics now? And just because there’s more information — you know, there used to be a

world where you had to wonder who your senator was going to endorse or who your local

newspaper is going to endorse because that’s all the information there was. Now there’s a

lot more information out there and maybe it’s just not as important. And I don’t know

whether or not the model still applies. I’m not saying it does or doesn’t. I just don’t know.

You guys proposed a few areas where conservatives could do something similar in the

future — foreign policy, surveillance, occupational licensing, agricultural subsidies, so a

great list of really interesting areas where conservatives could actually become more

conservative. They could be more anti-state and move in this direction. But I just don’t

know if that model of getting the elites to sign a statement of principles and change their

mind and shift and encourage in a different direction still applies. I guess we will see.

But, overall, it was a wonderful book and I really enjoyed it.

MS. SATEL: Wonderful.

Harold.

HAROLD POLLACK: Thanks so much. What a fascinating history of the Texas

story, by the way, and you should be really proud of what you guys accomplished. I’m

pleased to be here in the lion’s den of AEI to comment on David and Steven’s really

quite beautiful book. I started to sort of outline and dog-ear the things and then I noticed

that like every page was — it was kind of useless because every page was dog-eared.

And the way that you fuse policy analysis and political science in a very fruitful

way I think is a model of the form that allows us to really understand how to make better

policy in a politically informed way. Obviously, you’re exploring a critical policy issue.

You’re also exploring identity politics in the broad sense that I think it’s just so important

in, you know, how we process and communicate information in light of our political and

tribal and ideological identities is, you know, how do we move and compromise and

innovative while honoring and maintaining those ties.

Those are just critical questions in so many policy issues and this sort of cognitive

psychology and political signaling game that is part of that is quite fascinating and

especially in our hyper-partisan era that we’re in now. Although I would say it’s hyper-

partisan with many sub-divisions within each partisan camp and the order/disorder versus

state/non-state dichotomy that you mentioned, elite versus non-elite politics certainly

describe some of those fault lines.

So I want to just divide my comments into some general comments about

policymaking in a divided polity and then talk a little bit about some of the crime and

incarceration issues in the three hours that I have.

I do a lot of crime research in Chicago, and this book certainly resonates with us.

But let me start with health policy first, where I do a lot of work. And I was thinking

about this in the context of two things. One is disability. The Americans with Disabilities

Act may be the most successful legislative accomplishment of the past 30 years in health

policy, although we don’t generally put it there. And it’s a success that’s underscored

rather than negated by the general lack of partisan rancor that ADA occasions.

And Lennard Davis has this wonderful book, “Enabling Acts,” that describes how

ADA was passed. And it begins with this very colorful anecdote where there’s a bunch of

people in the room and there’s a shouting match between John Sununu and Ted Kennedy,

two of the outsized characters in the story. And, of course, from the vantage point of

2016, the most amazing thing is that they’re just in a room screaming at each other at all.

And they’re screaming at each other because they’re trying to get something done and

they have different — they have competing visions of what ADA is supposed to be and

they’re fighting about it and they’re trying to hammer out some sort of legislative

compromise. And you just couldn’t imagine anything more different from what’s

happening now.

And, in many ways, ADA’s bipartisan origins, and in particular its not exclusively

liberal origins, has been just really important in cementing its legitimacy and its success

moving forward. And I think that the criminal justice story is certainly very similar that

even if liberals actually could hammer over the head Republicans and change

Republicans’ minds and own the issue and win it, it would be a less lasting contribution

in many ways from what I think might happen if we are lucky as this issue evolves.

It’s amazing how much political and policy analysis today, though, is based on

such a different model. And it’s often based on this model, well, if we achieve a

comprehensive defeat of our adversaries, this is what we would do. And, ideally, this

comprehensive defeat would be, by the way, at all levels of government because I think

the fact that you had state-level innovation in the scarlet states is such a critical part of

this story. But, you know, I think even — I’d love to see a comprehensive victory like

that, you know, but even with Mr. Trump’s best efforts, I just don’t think we’re going to

get that on the Democratic side, so we have to figure out a different way to proceed.

As you might gather from my last comment, I’m a kind of un-ironic liberal

partisan and I actually made two campaign commercials, one of which was on the Rachel

Maddow Show, which I guess is the — this sort of gives me a — not quite the Colson

badge, but it’s up there. And you just can’t imagine an issue where the tribal identities are

more linked than the Affordable Care Act. And, you know, whenever any issue comes

up, we all process on both sides whatever some new problem on the exchanges or

whatever, we all process in a very tribal way what’s going on.

What’s interesting is at the same time, with some of the same people when I do

disability policy, it’s totally different. So I sometimes get calls from Republican policy

operatives and they say, you’re going to hate everything about our plan, about Medicaid

for poor people. But what should we be thinking about for the disabled people? And how

do we make sure that we don’t — that we achieve some disability policy gains in what

we want to do? And, you know, disability involves huge dollars. It’s a very — you know,

it’s a very complex and expensive thing. It’s largely free of the partisan animus that we

see in everything else in health policy. And I think that it’s the central fact that many

Democrats and Republicans walk the disability walk in our own lives. And it’s just hard

to be a complete jerk about it or to view one’s political counterparts in a way that’s

stripped of their humanity when that is the case.

And I remember in 2008, when I was an operative for the Obama campaign, I was

writing nice things in the Huffington Post about Sarah Palin. You might not believe that

such things existed, but they did. And a lot of us thought that — you know, whatever else

we thought about her, you know, she had a child who was born with Down Syndrome

and many of us had walked a walk that was not so different from that, and it mattered.

And people like George Will and Bob Dole and Orrin Hatch did tremendous amount of

disability policy. And I think there was an identity vouching that was important in the

story of a lot of the 1970s and 1980s disability policy.

And I think LGBT policy, obviously, has some of the same resonances, where

people have an intense personal interest and they have an incentive to get involved often

before there’s any concrete political path that makes it promising. You know, if your son

is transgender, you’re going to get involved in that issue even if there’s no immediate

path to move ahead on that. And you need people like that on whatever the issue is

sometimes to get movement.

And so let me shift a little bit towards the crime story. I do think that groups like

Right on Crime were just so essential in not just providing political cover, but the sort of

internal organic argument that allowed an ideological and political coalition to move and

to rethink some positions. One of the things I liked in the book that was mentioned was

providing politicians with useful clichés. So bureaucrats with guns, for example, as a

metaphor, that allows an anti-statist rhetoric to sort of get — to glom onto the issue in a

persuasive way. That’s really important. And I think that to allow the anti-statist

perspective to really engage this issue. And I think today — I’m Chicago. I’m involved in

some efforts to deal with some of the abuses that we have in policing in Chicago. And

certainly the excess of police unions and the collective bargaining agreements that protect

police who commit abuses certainly fit an anti-statist frame quite well.

And just to say a few specific things about crime it is crimes always bedevil both

Democrats and Republicans. I think many of my liberal friends think of a crime as purely

a racial dog whistle kind of an issue, which I think this reflects a misconception that is

genuinely a tremendous social problem. Of course, sometimes crime politics is a dog

whistle, and that time machine — it was painful to read some of the quotes from Ronald

Reagan and Richard Nixon that are in the book and the Grover Norquist quote that you

gave, which — now, Donald Trump doesn’t come out of nowhere with the rhetoric that

he has.

But I hope that this book teaches my liberal friends that there’s a lot more to the

story and there’s a lot more to the conservative story. And the strand of personal witness

is really quite moving in the book. People who have direct experience ministering to

prisoners, people who’ve been incarcerated for one reason or another, but also people

who just have a basic Christian perspective that, you know, there’s — Glenn Loury notes

in the book that Christ was crucified next to a common thief, and that’s — there’s a

powerful experience of witness for anyone who’s ever been in a jail or a prison that is

really quite something and quite genuine. And I just think we need to honor that in a

serious way.

Of course, there’s a strategic dimension to this. I think that conservatives and

Republicans labor onto the concept that they are overly harsh in social policy and this is

— there’s some strategic advantages to pushing this issue. I see this as a feature, not a

bug — that it’s good that when humane policies align with people’s political incentives,

that’s how you get things done.

Just thinking about the future, to close up, as David and Steven note that the fiscal

arguments for de-incarceration are dicey. They’re ripe for critique or at least they’re

contingent on what actually happens moving forward to crime rates and to the

effectiveness of programs we have that are alternatives to incarceration. We have to think

harder about how to reach violent offenders. On any given day, the majority of people in

state prisons have committed a violent offense or they’ve committed some other serious

crime. I think Michelle Alexander and others who sort of (lead ?) that a little bit are doing

a disservice. We really have to reach the violent people.

And the excessive sentences for people who have committed violent offenses are

a core challenge. And Eric Sevigny, Peter Reuter and I have analyzed drug courts. And

one of the main things that we find is most drug involved offenders would be ineligible

for most drug courts in the United States. And we have to deal with that issue, and there

are risks to dealing with that because there’s going to be new — you know, Willie

Hortons actually exist in the world. There may be more of them. And the political impact

of someone who is diverted and commits and atrocity is hard to predict.

And, you know, I think the main thing that we need is a kind of evidence-based

optimism. And one of the reasons why I’m proud of the work that we do in Chicago, as

we’ve shown in randomized trials that there are a lot of ways to reduce violent offending

that don’t involve keeping people locked in an eight-by-ten box. There’s prevention

programs. There’s things like Dakota 24/7. There are youth prevention programs, Hawaii

HOPE. There are a number of things that we need to make work at scale and to prove to

the American public that we can keep them safe. So thank you very much.

MS. SATEL: Thank you, Harold.

Heather.

HEATHER MACDONALD: Well, thank you, Sally. And this is such an

extraordinary privilege to be on this panel of people I respect immensely. And I’m

honored to have been invited by AEI to be here, and thank you, Sally, for facilitating that.

I sort of got the impression from Steve that he’s expecting me to be critical of the

book. So I’m really — I don’t think of myself as a critic, but I don’t want to let him down

in being more perhaps a different voice on this panel. As has been said quite rightly, this

is an extraordinary work of political science that will I think be of enormous use to

students and policymakers and thinkers in the future about coalition building and how

political change is wrought. And it’s a close historical analysis of the growth in a

conservative voice in the de-incarceration movement.

There’s a second aspect of the book, however, which is not the pure reported

history, that is more ideological take. And that is an interpretation of the response to

crime in the 1960s, ’70s and ’80s, and a reaffirmation of a very dominant meme in our

culture today about mass incarceration. And I’m going to address myself to those aspects

of the book today.

I hope Steve will not object if I claim that the narrative voice in this book is one

of ironic detachment towards the country’s experience with crime starting in the 1960s.

The authors talk about the frenzied rhetoric that emerged during the 1960s. They still

object to what they call today blustery rhetoric, when a state legislator is quoted as saying

that it’s important to make violent felons pay for their crimes. They use the inevitable

panics terminology. They talk about the crime and the drug panics, invoking Michael

Tonry (ph) with his ironizing distance on crime and drug issues.

And their argument about the 1960s is that the fear of crime was in large part a

displaced reaction to the opposition to the civil rights movement and to desegregation and

that for many whites the concern about crime was a way of talking about their objections

to what was happening above all in the South. They say, I’m quoting here, “The crime

rhetoric was loaded with racial appeals, but it needed to be scrubbed of overt racism in

order to work.” They have some examples, it was alluded to today, of these racial

appeals. Here’s one from Richard Nixon accepting the Republican nomination. Quote,

“Let those who have responsibility to enforce our laws and our judges who have the

responsibility to interpret them be dedicated to the great principles of civil rights. But let

them also recognize that the first civil right of every American is to be free from domestic

violence, and that right must be guaranteed in this country.”

What’s not to like? To me, that is not a racial appeal. But if we’re going to

consider that a racial appeal, let’s hear a voice from a different administration. This is

from 1969, “To millions of Americans, few things are more pervasive, more frightening,

more real today than violent crime and the fear of being assaulted, mugged, robbed, or

raped. Residents of many areas will not go out on the street at night. Bus drivers in major

cities do not carry cash because incidents of robbery have been so frequent. In some

areas, local citizens patrol the streets at night to attain the safety they feel has not been

provided.” This was from a task force on individual acts of violence appointed by

President Johnson that was reporting to his famous Commission on the Causes and

Prevention of Violence.

Now, what was behind this allegedly race-based rhetoric? What were the facts? In

the 1960s alone, the violent crime rate doubled. The crime rate increased at higher rates

in the 1970s and 1980s. It increased 353 percent from 1960 to 1990. The per capita rate

of violent crimes in 1960 was 161 per 100,000 people. By the early 1990s, that was at

741 violent crimes per 100,000.

Let’s put that in international comparison. The authors invoke the inevitable mass

incarceration meme of pointing out that we have a higher — much higher rate of

incarceration than other democracies, industrialized countries. What they leave out, as is

always left out, is what is our crime comparisons. Americans’ homicide rate is seven

times higher than the combined rate of all Western democracies combined. Our gun

homicide rate is nearly 20 times higher. When you look at the ages of 15 to 24, those ages

commit homicide with guns at 43 times the rate of other democracies.

Now, I would say that the racial appeals, or not so much the racial appeals but the

racial content of the language about the crime catastrophe that began in the 1960s was

actually very muted if not non-existent. Apparently, to the authors to merely talk about

crime is to be engaged in a racial subtext, which makes it very difficult to talk about

crime at all given the racial disparities. This is not a result that public policies wish for,

certainly not a result that the police wish for. But the facts are — the facts — today,

blacks commit homicide at eight times the rate of whites and Hispanics combined. If you

take out Hispanics, you get about a 12 to one disparity in homicide rates. If you’re going

to play the race card to say you can’t talk about crime, then we cannot talk about crime,

but that does not mean that we are talking about race.

Now, we also have rhetoric about the drug scares of the 1980s. And we heard a

quote from Newt Gingrich about that. Let’s not forget that the people who led the drug

scares was the Congressional Black Caucus. Major Owens from Brooklyn said that the

crack epidemic was the worst oppression that has faced the black community since

slavery. There was, no question, a bidding war that broke out over the federal crack

penalties. That was in response to the sense that the inner cities were being destroyed by

this crack epidemic. As Michael Fortner, whom the authors do footnote, points out, there

was a very strong black voice, middle class voice saying, we need to do something about

drugs.

Now, the authors point out that there is now cracks in the tough-on-crime rhetoric

and they say, well, partly, that’s because of the crime drop in the 1990s. This is portrayed

as somehow in accidental concatenation of events. I would draw certain conclusions.

Number one, the fact that the crime rhetoric or the panics, as they would call it, have

ebbed as a result to the drop in crime would suggest to me that this is not about race. This

is about crime. When crime goes down, the panics go away. They also do not ask why

did crime go down. I would argue that it went down as a result of changes in sentencing

policy and the policing revolution that began in New York in 1994, data-driven proactive

policing.

Let me briefly take on the second rhetorical aspect of this book which is to accept

the mass incarceration meme. They site Michelle Alexander non-critically as far as I can

tell. Harold brings out that maybe we should be a little skeptical for her narrative. I would

say we should be very skeptical. This is a highly duplicitous book.

They propose, as Steve did just now, that caging, as they call it, should be a

solution of last resort. It is. The JFA Institute, which is an anti-incarceration group

headed by James Austin, who’s been a very powerful voice for de-incarceration, has

estimated that 3 percent of all violent victimizations and property crimes — in only 3

percent does the offender end up in prison.

Prison today remains a lifetime achievement award for persistence in criminal

offending. You have to work very hard to get yourself sentenced to prison. Offenders are

given endless series of alternative sentencing, opportunities to get overseen in the

community. It is only when they develop an arrest record of such seriousness that a DA

decides to actually go and bring down the hammer. Talk to any big city DA. It’s a rather

interesting set of correlates that they use. You will learn that for a big city DA, car theft is

a non-serious crime. You’re not going to get prosecuted for a car theft. If it’s your car

that’s stolen, that’s pretty serious. Now, if you hijack a car, that will get attention from a

DA in LA or New York; otherwise not.

Let’s look at the actual statistics on who is in prison. In 2009, only 36 percent of

convicted felons got prison sentences. A third were sentenced to probation, the

community, a third got jail. What about violent convicted felons? Seventeen percent were

given community supervision; 27 percent were given jail; 57 percent were given a prison

term.

The majority of felons and violent felons are out on the streets. I would refer you

to an article of May 14th in the Washington Post by Amy Brittain, how an accused rapist

kept getting second chances from the DC justice system. It’s a horrific tale of a system

that refuses to lock people up. The records of people in prison are very serious. In 2009,

in the 75 largest counties, 36 percent of defendants charged with a felony had 10 or more

prior arrests. In 2005, of all inmates released from state prison at that point, the average

number of convictions was five.

Now, the drug war concept is obviously very powerful to the mass incarceration

conceit. I will just briefly say it is wrong. The increase in the prison population has been

driven in every decade by longer sentences for violent felons. At no point was an increase

in sentences for drugs responsible for the increase in our prison population. It was an

attempt to have repeat offender status for violent felons.

We mentioned the costs. Twenty-ten is the last year for which we have a full

breakdown of what prison spending is spent on. The states spent in total on incarceration

$48.5 billion. However, what is always left out of that is about 25 percent was actually

spent on community supervision, probation as well as training. The actual costs of

institutional confinement was $37 billion. The Feds, they spent — usually, it spends six

billion on the Federal Bureau of Prisons. So that’s a total of 43 billion (dollars) total that

this country is spending on incarceration. Let’s put that in context. I would say that’s

actually a pretty good bargain compared to the cost of crime, which devastate

communities, destroy economic activity. The states spend $1 trillion overwhelmingly on

education and social programs. Americans spend $7.4 billion on Halloween compared to

$43 billion on incarceration. HUD alone in one community revitalization program spends

88 billion (dollars). They would not be needing to spend that if crime in those

communities was not still high.

They say a conservative judgment of government should be by output. That is the

revolution. I completely agree. The crime drop that this nation has seen since the start of

the 1990s is the biggest public policy success in recent memory. Nobody in 1993 would

have predicted that nationwide we would have a 50-percent drop in felony crime. That

was achieved, again, by the lengthening of sentences, mandatory minimums, removing

discretion from judges and the policing revolution. Now, if there were alternatives to

prison that worked, by all means we should implement them because prison without

question is a squalid, spirit-killing enterprise, but I would maintain that crime is worse.

There are alternatives certainly which we should try. The swift, certain and fair

movement which tries to bring immediate sanctions to bear on infractions is worth

looking into. And I don’t know how much it can be applicable to property and violent

crime as opposed to drug offenses. But the hope for a large revolution in rehabilitation

programs — there’s a phrase you’ll come across very quickly if you start reading in the

criminology literature, evidence-based practices, EBP. And it is said that we have now

entered an era of evidence-based practices and expert-driven corrections as opposed to

mere commonsense or propaganda. I’m using Joan Petersilia from Stanford’s terms.

The problem is there’s not much E for the P. There’s not much evidence for the

practices. The Justice Department has a website that evaluates reentry programs,

recidivism programs. Of the six major reentry programs that the Justice Department has

evaluated using randomized controlled trials. They have found none that they are willing

to rate as effective.

So, for sure, let us keep open minds and see if we can figure out alternatives to

incarceration but I disagree with the rhetoric spin that what this nation has been through

is a covert attempt to impose a re-segregation or a racial war and that the best thing we

can do for inner cities is to bring the crime rate down and that is through, above all,

intelligent policing, but incarcerating when it needs to happen. Thank you.

MS. SATEL: Thank you, Heather.

Now, do you want to come up, Dave? And if you guys would like to respond to

anyone on the panel for maybe five minutes and then we’ll do Q&A — at least up to

11:45 a.m.

MR. TELES: OK. I’ll do a couple of quick ones. I’ll start with Heather. So I got

more or less what I expected. So that’s — but I do want to just correct a few

misimpressions about the book that you might have gotten from Heather’s talk. On page

21, if you get a copy, we do have a chart showing the increase in US murders per 100,000

people, right? We’re not hiding the ball. That increase in crime is a very significant part

of our story.

In fact, at the bottom of page 20, we say, and it’s worth quoting at length, “In

California and across the nations, families were living out the Nolan’s, Pat Nolan’s

Crenshaw experience or fearing that they were next. Even where they did not actually

witness crime, middle-class white Americans saw that standards of order in urban parks,

school and city streets were slipping. They began to abandon cities, but moving did not

eliminate their fears. Even more frightening than what had happened already was the

possibility that crime could keep getting worse, spreading out of the inner cities into the

white middle class suburbs.”

So I think we’re actually clear and we don’t give an account of this story that says

that somehow the big increase in crime was all made up, it wasn’t important, right? The

actual fear of crime in fact is a central part of our story because we’re arguing that the

decline in crime was causally important for the openness of politicians to considering a

reduction in mass incarceration. We also argue that it was essentially on the way up so I

don’t think that we’re ignoring that whatsoever.

I think this is another case where, you know, it’s possible to walk and chew gum

at the same time. It’s possible to say that there was a realignment in the parties at which

race was an important part and crime played a part of that, and that this was a big,

important issue that was affecting lots of people in a real way. It wasn’t just an entirely

matter of, you know, of some sort of malevolent social construction.

So, second, I’d also direct you to something that might not have been obvious

from that is that on page 165, we also say that another reason for concern is increase in

the salience in crime, right, that we say why this might not go on. It was the enormous

drop in offending and a drop in public fear that provided the window for conservatives to

become more open to information on the damage caused by mass incarceration. And we

say that one of the most important reasons why this might not go on is an increase in

crime. And I should also say, in relation to what Heather noted, that many of the

alternatives to incarceration that are being done in these states, I have some very serious

questions about — about their effectiveness.

And drug courts are one example. I think the evidence for drug courts is pretty

thin. I think the evidence that they can be scaled is even thinner. I think the evidence for

the ability to scale things like Hawaii HOPE, right, which is a more or less mechanical —

you know, there’s lots of, you know, serious public administration mechanical programs

but it’s the kind of thing you can imagine scaling.

But, unfortunately, most — you know, there are not a lot of these conservative

states that are really seriously putting resources into making probation and parole a major

professional kind of — you know, I mean, in most states, these are a kind of status rather

than a program, were not, you know, really intensively supervising most people who are

out. And I do worry that if we actually get too far long in reducing sentencing before we

build up this other part of the state, and this is in a way a lesson I would have to

libertarians.

And if you want to really reduce this — I think as Heather admits, this really quite

destructive part of what the state is doing, you’re going to have to build up the state in

this other part, right? We can’t just reduce sentencing without — especially having — in

some sense, having created the damage we’ve created with prisons, we now actually need

to supervise these people who have been through that process in prisons.

The final thing I’ll say on Vikrant, and then David probably has some comments,

I think this is an incredibly insightful point that the assumption that the way to change

people’s minds is to change those for whom — change the position of the cue makers,

right, the people who actually people look up to to figure out what it is the position that’s

appropriate for their identity — that that may have been a characteristic of a period in

time rather than an inevitable, durable part of human psychology, right?

That we can think of it — and one way to think about it, I’ve toyed with this

periodization, and this may just be (bold ?), but I’m kind of making it up as I go along,

but you might think of a period in American history where we had quite profound

deference to elite opinion, right, to professional opinion, right? And if you go back and

look at lots of areas of policy making in the ’60s and even through the ’70s, what’s

remarkable is how much deference we had to experts, right, all the way up through the

end of the ’70s and deregulation, airlines, right, how much people looked up and said,

wow, you know, there’s all these experts telling us to do this stuff, right?

And then we had this long period, arguably this is part of party polarization,

where ideological cue makers had enormous power, right? And so in some ways, the

right on crime, one story might be is this may have been the last gasp of deference to

ideological cue makers, right? And some would think what Trump might be indicating is

maybe a decadent third period in which all of those authorities have lost their ability to

generate deference from a larger audience, right?

And that in itself is really terrifying, right? If you thought that the movement from

expert to ideological cue making was terrifying, right, the one to — and we’re in a period

in which no one has that kind of authority, is even more terrifying.

David.

DAVID DAGAN: Yes. So I also just want to say thanks for all of these

comments. And I really welcome Heather’s comments actually because I think they are a

useful reminder of the fact that there’s a crime problem underlying the incarceration

problem and we — you know, I think it’s — I do think mass incarceration critics, right,

sometimes do leave that out. And crime is sometimes almost framed as a problem for just

getting people out of prison, right? And that’s backwards. Although, I do think we do a

decent job of acknowledging the realities of the relationship in the book.

I also just want to point out, Heather, you noted that the increase in incarceration

is one of the great social policy successes of the last two decades. The studies suggest —

the econometric work out there — that between 10 and 25 percent of the crime drop that

we’ve experienced can be attributed to incarceration, and that’s a lot. That’s nothing to

trifle with, but it’s not the case that we know incarceration is exclusively or even

primarily responsible for the drop in violent crime. And it’s also the case that, as Vikrant

pointed out, states that have significantly reduced incarceration have also significantly

reduced violent crime. New York is actually one of them, right? And so —

MR. TELES: And the evidence is it was the first part of the increase in

incarceration that had the really big impact on crime numbers, right? It wasn’t — it was

the first hit up that really mattered.

MR. DAGAN: But I think the point, though, and Steve got at this, is that you

can’t just reduce prison numbers. You have to figure out how to do crime control better

and more efficiently. And so, in that spirit, I really welcome Heather’s remarks.

And just to Vikrant’s point, I do think — I agree with Steve and I think that

Trump might signal the end of this kind of era but I would also note that Right on Crime

actually as a movement always did a very good job of recruiting the latest wave of

Republican insurgents into the fold in a sense, so you had people like Erik Erikson or,

you know, Mike Lee, Ted Cruz. These people might not have officially signed the Right

on Crime statement of principles but the tea partiers were certainly on board with this

movement. I guess the question is how sustainable is it to keep recruiting the latest

insurgent, right? And Trump might be a tough, tough sell, although, you know, maybe

Newt Gingrich is whispering in his ear.

MS. SATEL: Great. Thank you.

MS. MACDONALD: Can I just quickly respond that New York — David is

absolutely right. New York State had a drop in its prison population when the rest of the

country was still — if not still going up, holding steady. There’s been a very — a lovely

study done by Michael Jacobson and James Austin from the JFA Institute that I referred

to earlier that showed that what drove the drop in the New York State prison population

was that the New York Police Department was so involved in proactive policing,

enforcing broken-windows offenses. These are the low-level, quality of life

misdemeanors so that they were getting offenders early in the cycle so that the arrest rate,

the stop rate went up but the actual felony arrest rate and felony commitments went down

because government was intervening more. This might not be acceptable to the

libertarians, but it was a change in the locus of government control to intervene on the

streets earlier. But that’s a very good thing to point out.

And I would also say Frank Zimring has argued that it was in the ’90s when the

incarceration rate reached what he calls its maximum throw weight, that it did take the

bite out of the crime population.

MS. SATEL: OK. I’d like to open it to folks.

Larry Mead.

Q: Hi. A couple of a years ago, I served on the National Academy of Science’s

committee about the incarceration problem. The opinion on this committee was

predominantly left of center, as you might imagine. A criticism — and the committee did

indeed recommend that there be cutbacks in incarceration under various rationales.

The thing that came out of it, though, was that many states — although there may

be drops in the prison population, the states have not yet changed the underlying laws that

caused many more people to be incarcerated than would have been the case in the ’60s.

This includes the three-strike laws, the length of sentence restrictions, the reduction of

discretion that the judges had. All of that is still in place.

So the reductions we’re seeing are basically discretionary changes on the part of

prosecutors and others to keep down the prison population. But we haven’t actually yet

changed the policies that drove the prisoners up. And if indeed, crime is still increasing,

incarceration might very speedily return to higher levels without any legislative change.

So I wonder if you’d comment on that. Are we really seeing change in the laws that drove

the prison boom?

MR. REDDY: I think you are seeing some changes in these laws that they

sometimes are incredibly technical but they are changes. I’ll name one example right off

the top of my head. People understand that there are — when you’re talking about

larceny, there’s a difference between stealing $10 from somebody and stealing $100,000

from somebody. And people understand that some things are misdemeanors, some things

are felonies, even within those two broad categories there are different levels of

misdemeanor and felony.

Now, the difficult question is, where do you draw that line? And the line is

necessarily going to be arbitrary. Different states have drawn it in different places and it’s

remarkable when you look at how varied the lines are. In Texas, where I come from, the

larceny threshold between misdemeanor and felony is $2,500. In Virginia, where I’ll bet

a lot of people in this room live, that line is $200. And so a lot of people in Virginia who

would be considered misdemeanants in Texas are considered felons and they’re getting

commensurate penalty enhancements for that very reason.

In many states across the country, they’ve looked at thresholds like this and just

changed them to match inflation. So, in fact, Texas has only recently put up $2,500. It

was at $1,500 I think up until the last legislative session, and they said, well, we put it

here in 1993, what’s inflation been? Let’s adjust it.

So that’s a very difficult policy prescription to put on a bumper sticker or explain.

It’s so incredibly technical, but it does affect incarceration rates. I mean, people still get

punished and they should be and they should be held accountable. And I just want to note

that Heather’s absolutely right that you have to realize that the crime problem was real,

still is real in many regards. And it’s completely irresponsible to talk about this issue

without talking about the crime problem. And I think your book does a good job of it, but

I do think many people in the advocacy space are terrible on that score. They do use

words like hysteria and panic about what happened in the ’60s and ’70s and I think that’s

incorrect.

But they are criminals. They do have to be held accountable. And, you know,

changes to the law like this still hold those offenders accountable, but they mean less

prison days overall. So changes like that are happening throughout the country at the state

level.

MR. POLLACK: Just one comment on Larry’s points. Great to see you, by the

way. One of the really striking things is how those mechanical things like three strikes

have really undermined police legitimacy and criminal justice legitimacy in many of the

communities in — for instance, in Chicago, when I talk to community groups and we’d

really like to see more proactive policing and basically aggressive enforcement and

prosecutorial behavior on young guys who are carrying guns because they’re scared of

each other and they’re sort of in this arms race with each other that is behind a lot of the

gun violence in Chicago. And what we need is a sense — you know, I’m going to get

caught and I’m going to get some kind of — maybe it’s a one-year or a two-year sentence

for a UUW-type offense with a weapon.

When I talk to people in communities, it’s very hard to get oxygen for that given a

lot of the issues around criminal justice and police issues. And the real long sentences —

you know, it’s part of people’s lives. What they see in their lives makes them very

unreceptive to some of the things we’d really like to do in evidence-based policing that

would actually make these communities safer.

And so I think that one of the things the police need from us is public policies that

create more oxygen in communities, which includes on the prevention front and the non-

criminal justice front a sense — you know, we’re doing a full-court press to reduce

violence. And as part of that, you have to be willing to allow the police to do certain

things that you might be uncomfortable with, but that needs to be part of the package.

That’s a very tough sell in Englewood or Roslyn or the places in the Chicago where

people are getting shot in high numbers, even though the people who are most concerned

about violence, you know, are living in these communities and so on.

MR. TELES: I mean, one thing I think — and I didn’t actually mention it, but it

was a very important part of the story is the role that the Pew Foundation played here,

right? And in the story, we really sort of make an argument that the kind of work that

Vikrant was doing at Right on Crime and the work that Pew was doing were really

working hand in hand, right — that Right on Crime was sort of clearing space for people

to think that this entire enterprise of considering reducing incarceration was worth doing,

right?

And then Pew would come in often with incredibly technical, you know, kind of

suggestions, once they’d actually cooled the environment down to where people could

actually start doing evidence-based policymaking, right, that isn’t where you start, right?

You have to actually work through identity. You have to work through the idea that this

is something that’s consistent with your ideological understanding of yourself, right? And

then, it’s remarkable actually how evidence-based people can get, right? And, again, a lot

of this first wave of things Pew were doing, again, were often things about trying to

reduce revocation of parole, right, and there’s lots of things you can do to keep from

doing that, right, and lots of things you can do by trying to make what you’re doing on

the outside more effective.

That’s one of the basic evidence that Pew always gives people is saying, look how

many people who are in prisons, right, are people who got there for revocation of parole,

right? We have to be — you know, these are people we have some control over. We

ought to be able to do that essentially paternalistic project better than we do, and we still

need to do that far, far better than we do if we want to reduce prison numbers. Again, a

lot of these other things.

The real thing — and I think this gets to a point that Heather was making earlier,

right, you start to run out of gas in that kind of part of the process. Once you start — you

know, you can do about 10 or 15 percent reductions in incarceration. And you’ve seen

that in a lot of states, right, maybe you can get up to 20, right? You start getting really

rapidly declining marginal returns after that. And at that point, you have to start thinking

how long should people be doing time for rape, right? How long should they be doing

time for murder, right?

And that is the only way you’re going to you know, when people talk about 50

percent reductions in incarceration, right, I can imagine doing that, right? If you built up

what Mark Kleiman calls the outpatient prison, right, enough, right, enough control

outside of prison, you might be able to do that, right, but you’re only going to do it by

saying, you know, we went too far increasing penalties for murder, and that’s where the

bulk of the increase in incarceration came from, right? It came from longer sentences for

things that everybody thinks somebody ought to be doing time for, right?

And that’s where I don’t think in almost any state we’ve really gotten, right?

Conservatives haven’t gotten to that stage. They’re still in the stage of in a way taking the

low-hanging fruit, right? And, you know, I want them to take all that low-hanging fruit

they can, but that’s only going to get you so far.

Q: Thank you. Paul Maringoff (ph). I think it would be a mistake to believe that

Senators Tom Cotton and Jeff Sessions are outliers who, as Professor Teles said, still

seem to believe that we should go into the way-back machine. I mean, the movement

failed to get a critical mass of the Republican Caucus in the Senate. So I don’t think it’s

the certified conservative position yet that you’re advocating, if that’s how you describe

it.

But my question is, in your book, you say that you identified a number of

positions where conservatives could, with the right sell, become more liberal. Did you

identify anywhere liberals could become more conservative through some sort of

confluence? And if so, what are those issues?

MR. DAGAN: Just to address maybe the first part of the question. For various

reasons that we described in the book, the federal case was always going to be tougher.

One reason is that the federal space is much more competitive, right? So the issue of sort

of the factor of one-party control opening up space is not there.

And I would just note that while it’s certainly true that this movement hasn’t

captured a majority of the Republican Caucus on either of the House or — in either the

House or the Senate here in Washington, the justice reinvestment laws that we describe in

the book have generally been passed unanimously in the state chambers we talk about. So

at the state level, it is a different picture.

MR. TELES: Yeah. I mean, so it’s a good question, right, and I’m writing a book

with Brink Lindsey on the role of rent seeking and inequality and so as an example of

issues like that, that would have the opposite — and I’m also an advocate of school

choice so, obviously, I think that for egalitarian reasons, lots of people on the left should

be more supportive of school choice and charter schools and private school choice.

In the book, two things we emphasize are occupational licensing, which has

enormously negative impacts especially at the low end of the labor market and it

increases the cost of services for poor and working class people. That, I think, is an

important issue. The second is the essentially NIMBY difficulties in building housing in

big cities which means increasing rents for people who have a harder time getting in the

housing market.

And I think, indirectly it explains gentrification; that is, if you can’t get more

middle-class people in existing middle-class neighborhoods, right, they’re going to move

to adjoining neighborhoods, right? And the only way — if you actually want to prevent

gentrification, right, is to allow people to build up where the middle-class people already

are, right? And most cities, right, make that hard. They make it hard to build. They make

it hard to build by right, which would be the ideal thing, and then one of the

consequences of that is it drives up the price of building whatever you build.

So I could keep going along in the same thing about things that where liberals, for

their own reasons, and that’s the basic point here, right, for their own basically egalitarian

reasons ought to be rethinking some of their support for regulation in all these areas,

right, or be thinking about market mechanisms for delivery of services, right? So this

isn’t just an argument about, you know, how to — you know, carefully or strategically

get conservatives to go, to become liberal which is not how we frame it in the book,

right?

Part of our argument in the book is in many of these cases, these are cases where

we would argue conservatives took a position for — you know, for temporary reasons or

for other reasons, right, that were in significant tension with other parts of their own

ideological priors.

MR. POLLACK: But I would say one crime issue that liberals need to potentially

move on — I’d like to see a more specific focus on deterring gun crimes and this idea

that gun violence is different. And I’m not sure I’d lock up the guy who steals the car, but

I would definitely lock up the guy who uses a gun for whatever else he’s doing. And I

think that there has to be an internal conversation within — you know, what we see in

Chicago is it’s a very tough sell not just with constituents, but with judges and with many

other people to make a very strong deterrent message about whatever else you’re doing,

you shouldn’t be doing it while you’re carrying a gun.

And I think there’s a way that — there’s an internal liberal conversation that

could be done about that that — you know, that could make headway on that because,

you know, we just have this problem where we have all these young guys who are

walking around carrying guns because they’re afraid of all the other young guys carrying

guns.

And they do this — if you talk to people, we talk to lots of gun offenders in the

jail and they all basically describe an implicit risk-benefit calculation where they feel

safer carrying the gun than they are worried about getting caught with the gun. And

we’ve got to change that. And I think — so that would be one particular area where I

would like to see movement.

MR. DAGAN: If I could just briefly piggyback off Harold’s point there, I think it

would be great to see a similar process playing out on the crime issue among liberals.

And one optimistic scenario that you create kind of a virtuous cycle in which the

conservative movement on incarceration actually creates space for liberals to foreground

crime more and crime control more because there’s a sense that you don’t always have to

be reacting to a perceived adversary, right, who is I think improperly but who is

perceived as being pro-incarceration and always have that be the default mechanism. So

it’s kind of, Harold, what you were talking about with regard to distrust in some of these

liberal communities.

MS. MACDONALD: I would just add this is all clouded by race. I mean, one of

the reasons why Chicago has had a hard time getting more certain sentencing for gun

crimes is the Black Caucus says it will have a racially disparate impact. So, you know,

the real solution to all of this is to bring the black crime rate down because that is driving

our discourse about policing and it is driving our discourse about incarceration.

And the solution for that, as far as I’m concerned, is if we can start talking about

the family again and the children need mothers and fathers because as long as you have

the high rates of out-of-wedlock child rearing in high-crime neighborhoods, it’s going to

be very hard to have these after the fact solutions whether even policing or incarceration

really bring the security of the people in those neighborhoods deserve.

MS. SATEL: OK. So unless you want the very last word — OK. Thank you. I

knew I had the easiest job, and I did, because five brilliant people and the conversation

could just keep going. But thank you so much all for coming. And, again, books are

outside. (Applause.)

(END)