Jurisprudence

Four Steps for Getting Republicans on Board With Criminal Justice Reform

Donald Trump signs a bill on the desk in the Oval Office with people surrounding him.
President Donald Trump signs the First Step Act and the Juvenile Justice Reform Act in the Oval Office of the White House on Dec. 21.
Win McNamee/Getty Images

The First Step Act of 2018 is a small step toward ending mass incarceration. This bipartisan legislation reduced certain mandatory-minimum sentences, prevents federal prison guards from shackling pregnant detainees, and will help federal prisoners earn early release. These reforms are long-overdue, but they will not dent America’s staggering incarceration rate. This is because less than 10 percent of the U.S. incarcerated population is in federal prisons.

More ambitious change must occur on the state and local levels. To pursue this goal, Democrats must continue to work with Republicans, who control 27 governor’s mansions and 30 state legislatures. Although bipartisan proposals are not always good proposals, consensus does not necessarily mean compromise. Many conservatives agree with progressives on important policies despite philosophical differences. Since the 2000s, red states such as Texas have begun to reduce incarceration, enhance in-prison rehabilitation programs, expand aid to former prisoners re-entering society, and even close prisons. The First Step Act—which received 87 votes in the GOP-controlled Senate—should provide Republican governors and state legislators with political cover to build on past success.

Interviews with experts from across the ideological spectrum about criminal justice reform strategy revealed four action steps to advance progressive initiatives in conservative states.

1. Encourage white conservatives who have been harmed by mass incarceration to tell their stories.

Most influential works about mass incarceration, such as Locking Up Our Own and The New Jim Crow, focus on the experiences of black people in this country. People on the left correctly emphasize the prison boom’s devastating impact on people of color, who are policed, prosecuted, and sentenced more aggressively than white people. Transformational change requires fighting institutional racism. But excessive incarceration also occurs in predominantly white, Republican states.

To expand the reform movement’s ranks, professor James Forman Jr., the author of Locking Up Our Own, suggested that progressives should recruit white conservatives to speak about their experiences with the criminal legal system. Activists should highlight these perspectives without downplaying the system’s disproportionate impact on minorities or neglecting nonwhite perspectives in policy negotiations.

President Donald Trump’s son-in-law, Jared Kushner, championed the First Step Act because his father, Charles, suffered in federal prison. In addition, a 2017 poll revealed that 54 percent of Trump voters know someone who is or has been behind bars. That statistic illustrates the prison boom’s oppressive reach, but it also reveals an opportunity to assemble a broad reform coalition. A race-conscious movement amplifying diverse messengers would encourage all Americans to identify with people harmed by the carceral state.

2. Build trust through collaboration and by recognizing conservatives’ good intentions.

Some progressives doubt that bipartisan criminal justice initiatives can combat racism in the legal system. Advocating reform in racial terms is a nonstarter for many conservatives, who consider racial-justice claims exaggerated or unnecessarily polarizing. This is a real obstacle. Still, people on the left can make progress by building rapport with conservatives through collaboration on shared policy goals. Once people across the aisle form connections, it is easier to have difficult conversations about race.

Professional relationships reduce the risk that conservatives will feel defensive when progressives bring up systemic racism. Vikrant Reddy, a senior research fellow at the Charles Koch Institute, told MTV that “conservatives are really sympathetic to this notion that we have passed legislation that has had unintended consequences” for racial minorities. At the same time, people on the right recoil at the notion that a “shadowy cabal of Republicans” attacked minority communities intentionally.

Progressives should not hesitate to confront racism—intentional, unconscious, and institutional—in frank terms. But when trying to persuade Republicans to adopt reform, activists should treat them as potential partners in the solution.

3. Appeal to the shared value of public safety.

A common misconception is that conservative reformers care primarily about cutting prison spending. While cost is important, public safety is critical to conservative reform advocates and opponents. Mass incarceration would never have happened if fiscal restraint trumped tragically misguided arguments about security. According to the influential Right on Crime initiative, “public safety is a core responsibility of government,” and today’s policymakers must deliver “a better return on taxpayers’ investments in public safety.” Appealing to this shared value makes it easier for progressives to persuade conservatives.

Framing reform in terms of public safety means changing minds about what keeps communities safe. Though almost all prisoners will be released eventually, our awful prison conditions leave many people damaged physically and psychologically. Moreover, housing and employment discrimination increase recidivism by preventing people with criminal records from earning a lawful living. A progressive public safety narrative explains that security depends on rehabilitation, re-entry, and dramatically reducing incarceration. Conservatives generally disfavor government interventions to remedy the conditions that cause crime, but they may support improving safety through criminal justice reform.

4. Use civil forfeiture to demonstrate the need for police accountability.

Some criminal justice topics are more contentious than others, and perhaps none is more divisive than policing. But even in this context there is potential for bipartisan change. According to Chuck DeVore and Randy Petersen of the Texas Public Policy Foundation (home to Right on Crime), civil forfeiture is a gateway issue for getting conservatives to back police reform. Civil forfeiture laws allow police to take and keep citizens’ property if officers suspect that the item is involved in a crime. For instance, during a traffic stop, an officer could confiscate money found inside the driver’s car, claiming that it was going to be used to buy drugs. Police can do this even if the property owner has not been convicted or even charged with wrongdoing. To recover the property, a citizen must prove in a civil proceeding that the property was not involved in a crime—there is no presumption of innocence. People across the political spectrum oppose this practice.

The Supreme Court just ruled that forfeitures to state police can be unconstitutional “excessive fines.” However, officers can still take property from innocent people if the forfeiture is not deemed excessive. While civil forfeiture is a narrow slice of America’s police misconduct problem, challenging it has broader benefits. A campaign against civil forfeiture may undermine blind faith in law enforcement and enlarge the pool of people interested in combatting police abuses.

Expanding support for reform is vital in states where progressives cannot enact policy on their own. With strategic bipartisanship, activists can slowly but surely improve the criminal legal system.