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266 ANNALS, AAPSS,651, January 2014

Locked In?Conservative

Reform and theFuture of MassIncarceration

ByDAVID DAGAN

andSTEVEN M. TELES

502935ANN TheAnnalsof theAmerican AcademyLocked In?research-article 2014

The dominant implication of the carceral state litera-ture is that path-breaking change is impossible throughordinary politics, reducing the options to either acqui-escence or a level of mass mobilization not seen in

decades. Over the last decade, however, activists havegenerated a surge of agitation for carceral reform, espe-cially at the state level. In a twist the scholarly literaturedid not anticipate, much of that energy is coming fromthe Right. The theoretical flaw underlying the scholarlypessimism is a focus on the way policies entrench them-selves through positive feedback, without commensu-rate attention to negative feedback. We argue thebalance of feedback is shifting to the negative side inthe case of mass incarceration. To seriously shrink theprison population, however, conservatives will have toaccept the construction of alternative governmentstructures; liberals will have to accept that these willremain more paternalistic than they might like.

Keywords: prisons; mass incarceration; carceral state;feedback

The more we learn about how we got intomass incarceration, the less we seem to

know how to get out of it. Understanding therise of the prison leviathan is surely important,not least because of its many corrosive effectson American democracy. But the scholarshipon the origins of mass incarceration, while illu-minating, has tended to focus heavily on theself-reinforcing aspects of the policy. It thusunderestimates the capacity of Americandemocracy to reassert itself against the carceral

DOI: 10.1177/0002716213502935

David Dagan is a PhD student in American and com- parative politics at the Johns Hopkins University in theDepartment of Political Science.

Steven M. Teles is an associate professor of political sci-ence at the Johns Hopkins University. He is the authorof The Rise of the Conservative Legal Movement (Princeton 2008) and Whose Welfare? AFDC and ElitePolitics (Kansas 1996), and coeditor of Conservatismand American Political Development (Oxford 2009)and Ethnicity, Social Mobility and Public Policy (Cambridge 2005).



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state. This emphasis is also a problem in the broader literature on policy feed-back, which explores how a policy creates conditions that shape its own future:most accounts emphasize positive feedback, or self-reinforcing mechanisms, overnegative feedback, or self-undermining ones. But this perspective puts scholarsat risk of overlooking recent developments in prison politics that represent amajor opportunity for change. In fact, arguments about policy feedback, oncebroadened to take seriously negative feedback, actually point to many of the keyroots of these reformist trends. Pessimistic accounts of endless incarceration, inshort, are both analytically blinkered and politically counterproductive. They arealso in significant conflict with current, real-world developments.

The dominant implication of the carceral state literature is that path-breakingchange is impossible through ordinary politics, reducing the options to eitheracquiescence or a level of mass mobilization the United States has not seen in

decades. Bruce Western, perhaps the literature’s leading scholar, argues, “Theself-sustaining character of mass imprisonment as an engine of social inequalitymakes it likely that the penal system will remain as it has become, a significantfeature on the new landscape of American poverty and race relations” (Western2007, 198). James Whitman concludes in his study of harsh punishment, “Realchange would mean change, not just in punishment practices but in muchgrander American cultural traditions. It would be foolish to think that suchchange is coming soon” (Whitman 2005, 207). Jonathan Simon suggests thatopposition to the carceral state “will not spread from the major political institu-tions of the United States, which have been largely made over by the war oncrime” (Simon 2009, 282). Michelle Alexander argues that progress demands “a‘radical restructuring of our society’”—one driven by a mass mobilization on thescale of the civil rights movement (Alexander 2012, 260). While more subtle inher assessment, Marie Gottschalk agrees that serious retrenchment can only hap-pen through a movement committed to “presenting the carceral state as first andforemost a pressing civil and human rights issue” (Gottschalk 2007, 239). Such amovement would almost certainly require an exceptionally unlikely direct mobi-lization of mass incarceration’s victims—the most disadvantaged of our citizens, with the least capacity for collective action.

Even as scholars have spent the last decade painting an overwhelmingly pes-simistic picture, however, activists have generated a surge of optimism and agita-tion for carceral reform, especially at the state level (Weisberg and Petersilia2010; Lynch 2011, 693). And in a twist that the scholarly literature did not antici-pate, much of that energy is coming from the Right. “There is an urgent need toaddress the astronomical growth in the prison population, with its huge costs indollars and lost human potential,” former House Speaker and presidential candi-date Newt Gingrich wrote in 2011. “The criminal-justice system is broken, andconservatives must lead the way in fixing it” (Gingrich and Nolan 2011). Scores

of politicians and activists with unquestioned conservative credentials havesigned onto a national “right on crime” campaign that calls for cutting the prisonpopulation and investing more in alternatives to incarceration. They have been joined by the American Legislative Exchange Council (otherwise known for help-ing to spread “stand your ground” and “ballot security” laws) and by conservative



268 THE ANNALS OF THE AMERICAN ACADEMY

think-tanks and politicians in dozens of states who have supported laws curbingor rolling back prison growth. Retrenching the carceral state is becoming asorthodox on the Right as building it was just a few short years ago.

These changes have shifted the trajectory of mass incarceration, as the mecha-nisms that entrenched it have weakened, while those undermining it havestrengthened. Largely because of conservative support—grounded in conserva-tive ideology—the dynamics of imprisonment in the United States are tippingfrom positive to negative feedback. This development opens up the possibility ofa cycle of reform that decarceration advocates—and the scholars whose workinforms them—disregard at their peril.

The Carceral State and Positive FeedbackThe idea that the effects of policy “feed back” into the structure of politics is themost important insight that political scientists have contributed to the study ofpublic policy. Following Kent Weaver, we define feedback as “consequences ofpolicy that tend to (influence) the political, scal or social sustainability of a par-ticular set of policies” (K. Weaver 2010, 137). Positive feedback entrenches apolicy; negative feedback undermines it.

The literature on the carceral state is replete with examples of positive feed-back. Government institutions created during moral panics expanded the

crime-fighting infrastructure that could be deployed in subsequent crime and vice scares, so state power came down harder in each cycle (Morone 2004;Gottschalk 2007). Faced with rising fear of crime and the shock of urban riotingin the 1960s, candidates and political consultants hardwired law-and-orderelectioneering into their strategies for office-seeking and partisan combat. Theeffect was to bully even reluctant legislators into a punitive arms race loaded with racial symbolism (Beckett 1999; Mendelberg 2001; Murakawa 2005; V. Weaver 2007; Stuntz 2011, 236–43). In this regard, crime was both a motor anda beneficiary of broader trends in American political development: the “issueevolution” that put racial conflict on the national agenda and the “Southernization”of U.S. politics (Carmines and Stimson 1989; Perkinson 2010). The success of“tough-on-crime” rhetoric prompted advocates working on a variety of issues,including violence against women, to frame their missions in terms that empha-sized punishment and police intervention (Meares and Kahan 1999; Gottschalk2007). Moreover, criminal justice was immunized from the Right’s critique ofgovernment as self-interested, inherently expansionary, and incapable of inno- vation (Weisberg and Petersilia 2010) because of the honor conservativesbestowed on law enforcement officials, a reverence reminiscent of that affordedto the military. Finally, prison-guard unions, private-prison operators, and local

economic-development officers rallied around the carceral state, mustering alevel of raw political muscle that critics of mass incarceration could not over-come (Gottschalk 2007, 30; Morone 2004, 460–61; Page 2013; Parenti 1999,211–38; Mauer 2006, 10–11).



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Meanwhile, a variety of mechanisms weakened the resistance of those com-munities most harmed by mass incarceration. Harsh crime policies entrenchedeconomic inequality, which fed back into imprisonment (Western 2007, 190–98).Suburbanization put a wide gap between voters who elected aggressive prosecu-tors and the inner-city populations that felt their wrath (Stuntz 2011, 7, 308).Growing state and federal intervention in crime control privileged groups thatcould organize at these levels of government, muting neighborhood groups thatopposed the punitive turn (Miller 2010). As other articles in this volume demon-strate, America’s prison binge led to the criminalization of African Americans anddisenfranchised citizens en masse through its legal and psychological effects.Mass incarceration, thus, reinforced the racial stereotypes that originally nur-tured it (Alexander 2012, 18) and politically demobilized the communities mostinclined to resist it. To some analysts, all these developments were driven by even

deeper forces that also tend to be self-reinforcing—a logic of racial domination,a late-modern “culture of control,” a reassertion of state power in the face ofneoliberal retrenchment, or a uniquely American bent for harsh justice(Wacquant 2001; Alexander 2012; Garland 2002; Whitman 2005).

The consensus of these pioneering works, in short, is that that the Americanprison system is characterized by “critically important positive feedbacks and weak negative feedbacks” (Murakawa, forthcoming, 9).1 As illuminating as thisframework of analysis has been, it embodies two theoretical problems. First, iterrs in assuming that the balance of positive and negative feedbacks is constantover time.2 Second, by focusing on structural forces, it ignores how creativepolitical agents can shift perceptions of political identity and, hence, redirectattention to negative versus positive information about policy effects. By incor-porating changes in the balance of political feedback and the fluctuating engage-ment of political entrepreneurs, we can generate a genuinely dynamic model ofpolicy development—one that can incorporate the sudden reversals and disrup-tive cascades that we know characterize real-world politics (Jones andBaumgartner 2005).

In American prison policy, both the character of the policy feedback and therole of creative political agency have changed over the last decade. As a result,the future of incarceration in America need not—and probably will not—be asdispiriting as its past.

The Rise of Negative FeedbackFive structural shifts over the last decade have weakened or reversed the forcesthat drove carceral expansion in previous decades. First, crime has fallen substan-tially. Public opinion registered the decrease in actual victimization, with only 2

percent of Americans identifying crime as the nation’s most serious problem in2012, down from 37 percent in 1994.3 Second, the partisan dynamics havechanged. Democrats shifted decisively to punitive positions during the 1990s,deliberately branding themselves as tough in an effort, as then-Senator Joe Biden




put it, to “lock Willie Horton up in jail.”4 In effect, Republicans were so success-ful in pulling Democrats to their positions on crime that they lost their distinc-tiveness, and thus their political advantage, on the issue (Holian 2004). Third,terrorism (and more recently immigration) displaced street crime as a politicallysalient source of fear. Republican office-seekers have discovered that when itcomes to painting Democrats as spineless and weak in the face of our enemies,terrorists and illegal immigrants make better foils than street criminals. Withcrime no longer paying large dividends to Republican office-seekers, policyentrepreneurs have more space to cast incarceration as damaging to conservativepolicy goals.

Fourth, this reframing has been aided considerably by the onset of fiscal crisesfollowing the 2001 and 2008 recessions. State-level austerity has made it easier toconvince budget-strapped politicians that incarceration is a wasteful and expen-

sive form of crime control. However, budget pressure alone was insufficient tochange the dynamics of crime control. Hard economic times can just as easilyspur an escalation of state repression as a withdrawal (Gottschalk 2010).5 And thebudget squeeze has not been purely a function of economics. It has also beendriven by a wave of Tea Party–inspired elected officials more committed to aus-terity and more hostile to raising taxes than ever before. The GOP’s turn towardfiscal orthodoxy is thus the final crucial shift. It has sanctified the cause of cuttingbudgets and radicalized GOP hostility to government, breeding skepticism abouteven those public functions Republicans have historically supported, such ascriminal justice and the military.

These five changes have dramatically reduced the structural bias toward massincarceration. But structural opportunities are not self-actuating. The emergenceof the conservative decarceration movement also required the intervention ofhighly motivated and well-connected activists (Dagan and Teles 2012a, 2012b).They tied what had been a handful of scattered state-level reforms into a broadernarrative that cast decarceration as a matter of conservative principle, then mar-shaled their political networks to spread the message, and plotted strategic initia-tives at the state and federal levels to bring around potential allies. The mostimportant players in these efforts were the libertarian-leaning Texas Public PolicyFoundation (TPPF), which widely publicized a reform package the Lone StarState passed in 2007; and the evangelical Prison Fellowship organization foundedby former Watergate villain Charles Colson, which applied a humanizing, reli-giously inspired framing of forgiveness and salvation to mass incarceration andrallied nationally known conservatives around the cause.

The changes are not merely rhetorical. More than a dozen states, most strik-ingly in the South, have seriously considered or approved significant sentencingreforms designed to avert future prison growth, and in some cases have evenshut down prisons (Jacobson 2006; Right on Crime 2013; Pew Charitable Trust

2013). Changes in historically punitive, politically conservative southern statesare particularly striking (Weisberg and Petersilia 2010). Texas implemented aseries of reforms between 2007 and 2012 to reduce its incarceration rate andprevent what had been a projected increase of fourteen thousand inmates in itsprison population (Levin 2011; Legislative Budget Board 2007). In 2008,



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Mississippi allowed nonviolent offenders to become eligible for parole afterserving 25 percent of their sentences—down from the previous mark of 85percent—and it was effective retroactively (Justice Policy Institute 2011). AndGeorgia Governor Nathan Deal was on the brink of tears in 2012 as he signedlegislation to reduce mandatory minimum sentences for drug crimes and expandprograms to divert drug offenders from prison (Gould Sheinin and Rankin2012). Such developments in states with cast-iron reputations for being “toughon crime” are changing perceptions about the ideologically appropriate stanceon criminal justice for conservatives more broadly.6 As a result, the prospects foreven more dramatic action are growing.

How Far Will This Go?Pessimists confronted with this accumulating reform record might argue that while policy-makers have stepped off the gas pedal, the carceral state’s cruisecontrol will soon kick in. In this view, austerity might have prodded some statesinto marginal reform, but mandatory-minimum sentences, aggressive prosecu-tors, and other positive feedbacks remain in place: if and when the economyrebounds, and budgets loosen up, conservative interest in the issue will slacken.Indeed, there might even be a backlash in which a relatively small number ofhigh-profile crimes by offenders diverted from prison spark a reversion to the

“hard/soft” dichotomy that has recently been displaced on the Right by “smart/ dumb.” Alternatively, if states do ease sentencing but congressional dysfunctioncontinues to keep the federal government tough as ever, the disparity couldinduce officials to divert more serious cases into the federal system. Or, to con-tinue the pessimistic line, the reform movement could be hijacked by the privateprison industry that promises to lower costs without dramatically reducing incar-ceration. Corrections Corporation of America, for example, has already offeredto replenish state coffers by buying publicly owned prisons, and Rick Scott haspushed hard for privatization in Florida (Bousquet 2012; Kirkham 2012).

It is also possible to imagine resurgent get-tough-on-crime campaigns addingnew categories of criminals to the prisons even while others are being released.Immigration detention currently is adding only thirty-four thousand or so prisonbeds to the national total. But more than ten times as many people cycle throughthose beds, and the numbers could rise if the crackdown on immigrants ratchetsup (Meissner et al. 2013). Liberals, frustrated by their inability to pass any kindof gun control, and perhaps turning their attention to inner-city killings, couldpush for tougher policing and punishment on illegal guns (Denvir 2013). Finally,a panic around meth could make policy-makers hesitant to decriminalize nonvio-lent drug offenses.

In all these pessimistic scenarios, the window for substantial change closesbefore the reform movement gets to the real drivers of high incarceration levels.Supporters of the carceral status quo “run out the clock” until agenda spacecloses and political attention shifts elsewhere. The machinery of mass incarcera-tion rumbles on.




For a variety of reasons, however, we believe the negative feedbacks that wehave described will not be squelched and instead will become a countervailingforce to mass incarceration. First, while major decarceration will ultimatelyrequire reformers to face tough questions about shortening the sentences of seri-ous offenders, there is much that can be achieved through less controversialchanges—what critics might dismiss as “tinkering” with the carceral state. Theoptions include finding alternatives to incarceration for public-order and low-level drug offenses, reducing time served (if not sentences) for property andserious drug offenses, and reshuffling parole systems to ensure supervision isfocused on those most likely to reoffend. Second, the target for these reforms is wide: some 60 percent of offenders housed in American prisons and jails arethere for nonviolent crimes (Schmitt, Warner, and Gupta 2010).

The scope for continued decarceration is thus substantial, and the momentum

real. The crucial issue is whether policy entrepreneurs from both the Left andRight are able to galvanize significant public investment in alternative social-order institutions, such as prison and parole, which have been starved forresources and attention during the era of escalating prison growth (Gottschalk2010; Weisberg and Petersilia 2010; Mauer 2011; Kleiman 2011). Without build-ing what Mark Kleiman has called the “outpatient prison”—professionallystaffed, technologically sophisticated, and legally empowered—there is littlechance of making a dent in the number of people held in the “inpatient prison,”or insulating the decarceration movement politically against a backlash.

The barriers to such alternative forms of state-building are substantial. Mostobviously, conservatives who see prison reform as an opportunity to shrink gov-ernment will be uneasy with the idea that it requires strategic government expan-sion, too. In coalitional terms, if evangelicals yield too much power over thereform brand to fiscal conservatives, a “hard” austerity framing is more likely toprevail. And even if ideological obstacles are overcome within the prison-reformcommunity, some of the most effective crime-reduction programs overlap withareas of policy where partisan gridlock tends to prevail. Finally, investments inalternatives to incarceration could be frittered away—for example, in indiscrimi-nate therapeutic drug treatment, programs that purport to “divert” offenders who were unlikely to be imprisoned anyway, or alternatives designed to appearso “tough” that they end up funneling most participants back to prison as failures(Clear and Austin 2009, 315). This could revive the corrosive belief that whileprison does not reduce reoffending, neither does anything else (Weisberg andPetersilia 2010).

The big question is whether incarceration is reaching a similar juncture ascapital punishment, a “tipping point . . . where changes in public understandinghave begun to induce further changes in policy, which in turn reinforce thosesame changes in public understanding” (Baumgartner, De Boef, and Boydstun

2008, 10). The “Nixon-goes-to-China” repositioning of conservatives is the deci-sive opening for this shift. Decades of tough-on-crime politics have positionedconservatives as the authoritative voice on matters of crime and punishment,making it difficult for liberals opposed to mass incarceration to win a hearing,even today.



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But will conservatives continue to sing their new song? The signs are promis-ing. The libertarian-evangelical alliance represented by Prison Fellowship andTPPF has staked a strong claim to “ownership” of the criminal justice issue withinthe conservative movement. These reformers have made cost, efficacy, andredemption central parts of the conservative framing of corrections, largely dis-placing the rhetoric of retribution and “take no chances” absolutism. Virtually allthe conservative intellectual investments in criminal justice now focus on reduc-ing prison populations. What is more, the new ideas have been battle-tested innational Republican primaries. As a result, championing criminal justice reformhas become a way for ambitious conservatives to brandish their cost-cutting cre-dentials, significantly widening the potential audience for what might otherwisebe seen as a narrow policy concern. Finally, after the GOP’s widely recognizedflop among minorities in 2012, criminal justice reform just might be a way to

attract constituencies who feel little connection with the party.If these forces gain in strength, we can imagine a multidecade effort to undothe excesses of the carceral state. Budget incentives would push county judgesand sheriffs toward low-incarceration options; prosecutors would be heldaccountable not just for punishing high-profile criminals but for overall crime-control efficiency; and increased funds to probation and parole departments would be structured so as to focus supervision on high-risk offenders (Lynch2011). The web of collateral sanctions that now extend punishment far beyondthe prison—which are already drawing the attention of conservatives—would bepartially unwound (Pearlstein 2011). The goal of halving the incarcerated popula-tion, currently just a hypothetical bandied about in parts of the literature, couldbe within reach if these sweeping reforms are put in place (though an equalreduction in community supervision strikes us as almost impossible) (Clear andAustin 2009; National Institute of Corrections 2013).

To be sure, both liberals and conservatives would find much to dislike aboutthis new supervisory state. Civil liberties would coexist uneasily with rapidlygrowing data-gathering capacities and with actuarial and medical techniques thatclaim to predict future behavior (Raine 2013; Beckett 1999, 103–4; Harcourt2006). Empowering probation and parole officers would extend the prisonbeyond the walls (Weisberg and Petersilia 2010) and require enhanced powers ofdiscretion that could raise due-process concerns. In fact, conservatives likely will want to experiment with privatized forms of noncustodial supervision such asexpanding the bail system into the postconviction arena (American LegislativeExchange Council [ALEC] 2007). But conservatives will have to accept that apurely deregulatory or privatized solution to mass incarceration will not suffice.Disassembling the carceral state will demand swapping one (much less coercive)form of government action for another. New forms of government action willneed to be created and old ones injected with new prestige. Liberals, on the

other hand, will have to accept that these new structures will remain more pater-nalistic than they might like (Kleiman 2013).Nonetheless, it is now possible to envision a future in which both sides accept,

for their own reasons and in their own language, that the moral and financialcosts of mass incarceration are too high, and that the number of Americans in




prison is a sign of failure, rather than a point of pride. In this scenario, Republicansand Democrats would argue about who is better at keeping down incarcerationand crime, rather than who can punish more harshly. Reaching that point wouldcertainly take more time—and caution—in Left-Right collaborations. At themoment, elite conservatives are still best served by arms-length alliances with theLeft to ensure the credibility of the reform brand. But the situation may be lessconstrained at the grassroots level, which is essential but largely untapped so far(Schoenfeld 2011; Miller 2011). Given the increased attention to criminal justicein the evangelical community, one promising possibility involves faith-basedinterracial alliances, such as the Friends of Justice organization that sprung outof the flawed 1999 drug sting in Tulia, Texas (Bean 2010).

Competition between conservatives and liberals over crime policy will neverdisappear. But if negative feedbacks increasingly dominate positive ones, a new

and more decent axis of competition is foreseeable—and may even come to haveself-reinforcing dynamics of its own. Scholars need to recognize that the carceralstate’s past is no longer prologue and seize current opportunities to build a systemthat preserves our safety while not violating our conscience.

Notes1. A small body of scholarship has begun to explore how actionable political strategies against mass

incarceration might be devised; our purpose here is to amplify and extend this work by drawing attentionto the opportunity presented by changes in the conservative movement. See Weisberg and Petersilia(2010) and Gottschalk (2011).

2. Marie Gottschalk acknowledges the perils of an undue focus on entrenched policy paths (Gottschalk2007, 238). We believe those perils are now very real.

3. See http://www.policyagendas.org/. These data were originally collected by Frank R. Baumgartnerand Bryan D. Jones, with the support of National Science Foundation grant numbers SBR 9320922 and0111611, and were distributed through the Department of Government at the University of Texas atAustin. Neither the National Science Foundation nor the original collectors of the data bear any respon-sibility for the analysis reported here.

4. Quoted in Murakawa (forthcoming).5. The pattern of budget pressure leading to carceral retrenchment is also inconsistent with theories

that cast the carceral state as one of the few instruments the state can wield to bolster its legitimacy in anera dominated by neoliberal ideas.

6. Brown (2013) concludes that GOP representation in state legislatures was negatively associated withdecarceration reforms in 2009, but the study does not weight reforms or examine other years. The crucialpoint, in any case, is that conservatives have been widely perceived as leaders on decarceration, shiftingthe dominant narrative of crime politics.

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