Prison Reform Is a Bipartisan Issue Now. Why Does the GOP Still Need to 'Win'?

The flaws of Obamacare continue to overwhelm the news, but it’s time to consider getting rid of another kind of death panel. We need to talk about the people our courts send away to die, and the way we treat every other prisoner as though his life didn’t matter. The United States is currently experiencing a quiet revolution in criminal justice reform – a bipartisan one. So what we need to talk about today is the part Republicans can play on the state and federal level, with or without the cost-cutting justifications that seem to come more easily to conservatives than an argument about human rights.

Criminal justice reform has historically been a bleeding-heart liberal cause. It has provided careerist Democrats an issue to present as proof of their moderate bona fides and given Republicans a chance to condemn any flicker of compassion: think Willie Horton. More recently, this month’s successful campaign to block Obama’s nominee for the Justice Department’s civil rights division, Debo Adegbile, depended on conservatives convincing moderate Dems that Adegbile’s role in overturning the capital conviction of Mumia Abu-Jamal was tantamount to endorsing the crime he committed.

The panel that eventually found Abu-Jamal’s conviction was majority Republican. The seven Democrats who voted to reject Adegbile might not think that matters. I do.

Last week, the New Hampshire legislature repealed that state’s death penalty by a two-thirds majority, 225-104, including 59 Republicans. Democratic state Rep. Robert Cushing shepherded the legislation through. New Hampshire may be a small state, he told me Tuesday, but the implications of the bill’s passage could be monumental:

It’s the first death penalty repeal bill in US to have equal sponsorship of Democrats and Republicans. We had self-described members of the Tea Party and defenders of the Second Amendment joining with liberal Democrats, former cops and family members of murder victims.

Cushing is one of those family members; he wants change at the national level. He observes that this new attitude about the death penalty is coming to the fore “at a time when the parade of wannabe presidents begins marching through the state”. He hopes both Democrats and Republicans take notice.

Sen Rand Paul has been campaigning passionately for the restoration of voting rights to non-violent felons since the beginning of the year. Another Kentucky Republican has introduced legislation to abolish the death penalty in that state. Both the Smarter Sentencing Act and the Recidivism Reduction and Public Safety Act have bipartisan support in the Senate.

At the Conservative Political Action Conference two weekends ago, Texas Gov Rick Perry (who has overseen more executions than any other governor in American history) bragged, to confused applause, about Texas’s reduced prison population: “You want to talk about real conservative governance? Shut prisons down. Save that money.”

Perry was not referring to the 268 human beings whom he eliminated from the population by putting them to death. He was talking about Texas’s use of drug courts, diversion to drug treatment and its shift away from mandatory minimum sentencing, an approach that has reduced its incarceration rate by 11%. In pursuing these policies, Perry has earned – and accepted – praise from Eric Holder and President Obama, who have moved the same policies forward at the federal level.

Make no mistake: Republicans still support the death penalty. They endorse it by 81%, actually; that is down, just barely, from 85. (Among all Americans, support for the death penalty is the lowest it’s been in 40 years.) As Perry put it at CPAC, with a somewhat disturbing twinkle in his eye: “Texas is still tough on crime. Don’t come to Texas if you want to kill somebody.” Conservative activism around criminal justice reform has been directed primarily at eliminating mandatory minimum sentencing and, for many advocates, flows from a specifically Christian ethos (“the principle of redemption”).

But we are at a watershed moment in finding a solution to the expensive and embarrassing problem that makes the United States the number one jailer in the entire world. Cuba and Rwanda have lower percentages of their populations in prison. Democrats and Republicans working together on this would be a necessary reminder that sometimes government works. And, even more importantly, that government should treat everyone equally.

Republican advocates for any kind of criminal justice reform have a self-conscious tic, like Rick Perry, of emphasizing the cost-cutting benefits of reforming sentencing. It’s embarrassing and tragic that they feel they must wrap their push for civil rights inside an economic explanation (though it has the advantage of being true).

I’m not sure why Republicans with limited criminal justice reform goals are using economic logic to twist around an issue that is much more common-sense than this: people, all people, deserve to be treated with dignity. The Constitution’s protection against “cruel and unusual punishment” keeps the jailer in check for a reason beyond the jailer’s benefit – preserving the rights of the prisoner. Reform is not just about economic half-truths, it’s about human rights.

If you believe, for instance, as anti-tax activist Grover Norquist put it at the CPAC panel with Perry, “the government ought not to do things that aren’t mentioned from time-to-time in the Constitution”, you wind up against the death penalty. (The Constitution’s instructions on capital crimes are even hazier than those relating to the right to bear arms.) If you believe prisons are too expensive, you wind up against the death penalty. If you believe that rehabilitation is more cost-effective than mere punishment, you wind up endorsing more humane treatment, more second chances, more support. You might even wind up against solitary confinement.

Norquist approached that still-radical position at one point, slipping from a discussion about reducing prison costs to a discussion about the fundamental purpose of our criminal justice system: “We need to not have ... prison guards set the rules to make prison guards’ lives easier,” he said. We need to “set the rules to have few prisoners and less recidivism”.

As it turns out, even prison guards are starting to realize that what they used to think made their lives easier actually just leads to more trouble, and creates an incentive for guards to not actually, you know, guard. In January, the Texas prison worker’s union made common cause with the ACLU to curtail solitary confinement there. The president of the union argued that solitary confinement as a response to unmanageable behavior “ignored the root of the problem” – “staff incompetency.”

I admit I am suspicious of some conservative reformers’ embrace of these least among us. My cynicism prompts me to ask what Republicans can expect to get out of criminal justice reform, especially the restoration of voting rights. My cynicism has a theory, too! Drug dealers are natural Republicans, self-starting entrepreneurs who reject interference by Big Government in their financial or personal affairs.

And, you know what? I think I might be onto something, though it’s not because drug dealers may turn out to be conservative, and potentially Republican voters. It’s because some people are conservative, and American prisons are filled with people. They are people first, with ideas and values and capable of intelligent decisions – once they are given the resources required to have more than all-bad options in life. They’re people first, and, like lots of other people, they may turn out to vote Republican. A part of me hopes they will want to.