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The Social Construction of Policy Feedback: Incarceration, Conservatism, and Ideological Change

Published online by Cambridge University Press:  04 November 2015

David Dagan
Affiliation:
Johns Hopkins University
Steven M. Teles*
Affiliation:
Johns Hopkins University

Abstract

Over the last decade, in a major switch in position, conservatives have embraced the cause of reducing prison populations in the states and, increasingly, at the national level. The long-term crime decline and the increasing antistatism of the Republican Party contributed to this change, but it also has an important cognitive component: Policy makers have become more open to evidence of the damaging effects of mass incarceration. In contrast to previous studies, our case shows that such policy “feedback” only functions politically when a signal about a policy consequence is assigned valence and intensity by policy makers, whose calculations are heavily structured by the demands of party coalitions. On issues in which no core coalition member has a major stake, feedback can be tipped from reinforcing to undermining and vice versa, but this process depends on the efforts of entrepreneurs to change the way information is processed. In a highly polarized environment, opening policy makers to previously ignored evidence requires the cultivation of a reform cadre composed of ideological standard-bearers who can vouch for the orthodoxy of the new position.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2015 

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56. Quoted in Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure (USA: Back Bay Books, 1997), 137.

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61. John J. DiIulio, “2 Million Prisoners Are Enough,” Wall Street Journal, March 12, 1999.

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63. Grits For Breakfast, “An ‘Unrepentant, Hard-Right Conservative’ Was ‘Forced to Agree’ with Prison Diversion ‘Based on the Facts,’” February 10, 2010.

64. See, for example, Michelle Alexander, “In Prison Reform, Money Trumps Civil Rights,” New York Times, May 14, 2011.

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84. City of Boerne v. Flores, Archbishop of San Antonio, et al. (U.S. Supreme Court 1997).

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87. Steven M. Teles, “Conservative Public Interest Law I: Mistakes Made,” in The Rise of the Conservative Legal Movement (Princeton: Princeton University Press, 2008):58–89.

88. Interview with Michael Horowitz, June 19, 2012.

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93. Interview with Pat Nolan, June 28, 2012; Chris Suellentrop, “The Right Has a Jailhouse Conversion,” The New York Times, December 24, 2006, sec. Magazine, http://www.nytimes.com/2006/12/24/magazine/24GOP.t.html.

94. Interview with Davide Keene, March 5, 2012.

95. Interview with Pat Nolan, June 26, 2014.

96. Grover Norquist, “Time to Take a Crack at Evil Empire of Crime,” The Washington Times, April 30, 1993, 2 edition; Grover G. Norquist, “Making Crime Pay,” American Spectator 26, no. 5 (May 1993): 44.

97. Interview with Julie Stewart, March 31, 2014.

98. Interview with Grover Norquist, March 19, 2014.

99. Interview with Pat Nolan, April 19, 2011.

100. Ibid.; Interview with David Keene, March 5, 2012.

101. Interview with David Keene, May 9, 2014.

102. Republican Governors Association, “Communication to Republican Gubernatorial Candidates,” September 14, 2010; Nick Ayers, n.d.; Mary Schmid, “Reducing Crime and Corrections Spending: Proven Approaches” (The Constitution Project, n.d.).

103. Interview with David Keene, March 5, 2012.

104.Anderson Cooper Hears Newt Gingrich Talk About Improving Prisons And Asks ’Who Are You?

105. Interview with Newt Gingrich, February 18, 2014.

106. Interview with Pat Nolan, August 6, 2012; Fair Sentencing Act of 2010 (Congressional Record Daily Edition, 2010), There is more info on the bill at https:// www.congress.gov/crec/2010/07/28/CREC-2010-07-28-pt1-PgH6196.pdf or https:// www.congress.gov/crec/2010/07/28/CREC-2010-07-28.pdf  Pat Nolan, “Reform Means Fairness: House Vote Would End Disparity in Crack Sentencing,” Washington Times, July 23, 2010.

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108. Knafo, “Rand Paul Decries Mandatory Minimum Sentences, Likens War On Drugs To Jim Crow.”

109. David Dagan, “The Tea Party Gets Something Right,” The Washington Monthly - Ten Miles Square, January 31, 2014, http://www.washingtonmonthly.com/ten-miles-square/2014/01/the_tea_party_gets_something_r048873.php.

110. Interview with David Keene, May 9, 2014.

111. Interview with Lori Grange, January 13, 2015; “Public Safety Performance:  Protecting Public Safety, Holding Offenders Accountable, Controlling Corrections Costs” (Pew Charitable Trusts, n.d.).

112. Interview with Adam Gelb, April 25, 2011 and December 7, 2013.

113. Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Texas 1980).

114. Interview with Adam Gelb, June 4, 2012.

115. Marc Levin, “Adult Corrections Reform:  Lower Crime, Lower Costs,” The Texas Model (Austin, TX: Texas Public Policy Foundation, September 2011), http://www.rightoncrime.com/wp-content/uploads/2011/09/Texas-Model-Adult.pdf.

116. “Adult and Juvenile Correctional Population Projections: Fiscal Years 2007–2012” (Austin, TX: Legislative Budget Board, January 2007); “Updated Adult Incarceration Population Projections:  Fiscal Years 2008-2012” (Austin, TX: Legislative Budget Board, January 2008); Tony Fabelo, “Mid Legislative Session Report: Funding Correctional Treatment and Diversion  Initiatives in Texas” (New York, NY: Council of State Governments Justice Center, May 2007); “Texas–CSG Justice Center,” accessed June 27, 2014, http://csgjusticecenter.org/jr/tx/.

117. Jim Mattox, Texas Attorney General to O.L. McCotter, Director, Texas Department of Corrections, “Mattox Opinion No. JM-362,” October 18, 1985, https:// www.texasattorneygeneral.gov/opinions/opinions/47mattox/op/1985/htm/jm0362.htm; Sheldon Ekland-Olson and William R. Kelly, “An Evaluation of the Legislative Response: The Prison Management Act,” in Justice Under Pressure, Research in Criminology (Springer New York, 1993), 85–104, http://link.springer.com/chapter/10.1007/978-1-4613-9517-1_6.

118. David Dagan and Steven M. Teles, “The Conservative War on Prisons”; Robert Perkinson, Texas Tough: The Rise of America's Prison Empire, First Edition (Picador, 2010).

119. Interview with Michael Thompson, June 24, 2014; “House Appropriations Subcommittee Approves Key Department of Justice Programs–CSG Justice Center,” accessed June 26, 2014, http://csgjusticecenter.org/jc/announcements/house-appropriations-subcommittee-approves-key-department-of-justice-programs; Marshall Clement, Matthew Schwarzfeld, and Michael Thompson, The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism, Crime, and Corrections Spending (New York: Council of State Governments Justice Center, January 2011), 70–71, https://www.bja.gov/publications/csg_justicereinvestmentsummitreport.pdf;. CSG now provides these analytical services in partnership with Pew and a third think tank, the Vera Institute of Justice, relying on a mix of federal and Pew dollars.

120. Patricia Kilday Hart, “Texas Lawmakers in Lockstep on Juvenile-Justice Reform Efforts—Houston Chronicle,” Houston Chronicle, May 22, 2011, http://www.chron.com/news/houston-texas/article/Texas-lawmakers-in-lockstep-on-juvenile-justice-1690581.php; Tim Dunn, “Criminal Justice Reform,” accessed May 30, 2012, http://www.timdunn.org/criminal-justice-reform-1; David Dagan and Steven M. Teles, “The Conservative War on Prisons.”

121. “The Texas Public Policy Foundation's Right on Crime Initiative: Leading the Way for Reform” (Austin, Texas: Texas Public Policy Foundation, October 13, 2013). This was a report shared with us via e-mail on October 22, 2013 by Vikrant Reddy of the Texas Public Policy Foundation.

122. Interview with Michael Hough, July 11, 2012; Interview with Pat Nolan, August 6, 2012 and June 26, 2014.

123. Interview with Michael Hough, July 11, 2012; Interview with Adam Gelb, January 6, 2015.

124. American Legislative Exchange Council, “ALEC Response to Krugman's Erroneous Claims—3/27/12,” accessed June 27, 2014, http://www.alec.org/alec-response-krugman%e2%80%99s-erroneous-claims/.

125. Gingrich and Nolan, “Prison Reform.”

126. George M. Leader and Matthew J. Brouillette, “Pa. Needs Corrections Reform,” Philly.com, accessed June 27, 2014, http://articles.philly.com/2012-05-31/news/31923691_1_parole-hearing-process-new-prisons-prison-time.

127.Last Sacred Cow Briefing: Grover Norquist, Americans for Tax Reform, 2011, http://www.youtube.com/watch?v=HWuhGR0TR80&feature=youtube_gdata_player.”

128. Interview with Joseph Coletti, John Locke Foundation, October 2011; Interview with Justin Keener, Granite Public Affairs, March 11, 2014.

129. Interview with David Keene, May 9, 2014.

130. Mississippi Senator Willie Simmons, quoted in John Buntin, “Mississippi's Corrections Reform,” Governing, August 2010, http://www.governing.com/topics/public-justice-safety/courts-corrections/mississippi-correction-reform.html; Carrie Teegardin and Bill Rankin, “Is Price Too High for Punishment?: Long Prison Terms Part of State's Tough Stance. Experts Say Cheaper Alternatives Don't Put Public Safety at Risk,” The Atlanta Journal–Constitution, May 23, 2010, sec. News.

131. Walter C. Jones, “Ga. Leaders Depend on the Same Well for Ideas,” Savannah Morning News, October 8, 2012, sec. Georgia, http://search.proquest.com/newsstand/docview/1111690775/14155DE87EC1BF8EF19/1?accountid=11752.

132. Sarah Reckhow traces the spread of the “failing schools” meme in her bookSarah Reckhow, Follow the Money: How Foundation Dollars Change Public School Politics (Oxford, England; New York, NY: Oxford University Press, 2012).

133. “Norquist Tells ALEC He Wants U.S. to Revive Decapitation,” The Progressive, December 30, 2013, http://progressive.org/norquist-tells-alec-he-wants-us-to-revive-decapitation.

134. An unusual, if partial, exception came from ALEC in 2012, when the group issued a statement declaring that its legislator-members are committed to solving key problems and added: Sometimes that commitment will require us to reevaluate policies and change course. We are not afraid to do so when the facts demand it.” American Legislative Exchange Council, “ALEC Response to Krugman's Erroneous Claims—3/27/12.”

135. James Austin et al., “Ending Mass Incarceration: Charting a New Justice Reinvestment,” April 17, 2013, https:// www.aclu.org/criminal-law-reform/ending-mass-incarceration-charting-new-justice-reinvestment.

136. “Mississippi's 2014 Corrections and Criminal Justice Reform:  Legislation to Improve Public Safety, Ensure Certainty in Sentencing, and Control Corrections Costs” (Pew Charitable Trusts, May 2014), http://bit.ly/1CLywBS; Buntin, “Mississippi's Corrections Reform.”

137. “2012 Georgia Public Safety Reform:  Legislation to Reduce Recidivism and Cut Corrections Costs,” Issue Brief (Pew Center on the States, July 2012), http://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/2012-georgia-public-safety-reform.

138. Marc Kovac, “Governor Signs Sentencing Reform Bill,” The Daily Record, July 3, 2011, http://www.the-daily-record.com/local%20news/2011/07/03/governor-signs-sentencing-reform-bill; Joe Guillen, “New Ohio Criminal Sentencing Bill to Save Millions by Letting Inmates out Early, Sending Low-Level Felons to Prison Alternatives,” The Plain Dealer, June 27, 2011, http://www.cleveland.com/open/index.ssf/2011/06/new_ohio_criminal_sentencing_l.html; David J. Diroll, “H.B. 86 Summary: The 2011 Changes to Criminal and Juvenile Law: August 2011 Draft” (Columbus, Ohio: Ohio Criminal Sentencing Commission, August 2011).

139. Associated Press, “Perdue Signs DWI, Probation and Prison Laws,” FayObserver.com, accessed November 22, 2013, http://fayobserver.com/articles/2011/06/23/1103872; James Markham, “Justice Reinvestment Essentials Chart” (Chapel Hill, N.C.: UNC School of Government, 2012), http://www.sog.unc.edu/sites/www.sog.unc.edu/files/Justice-Reinvestment-Essentials-chart_0.pdf; “Justice Reinvestment Act:  Historic Progress for Correction,” Correction News (North Carolina Department of Correction, July 2011), http://www.doc.state.nc.us/Newsletter/JRnewsletter.pdf; “Justice Reinvestment in North Carolina:  How North Carolina Is Reducing Corrections Costs and Recidivism” (Council of State Governments Justice Center, December 15, 2011), http://csgjusticecenter.org/jr/nc/.

140. Paul Alongi, “Plan to Cut Sentences for Nonviolent Offenders Could Save Taxpayers Millions,” The Greenville News, February 22, 2010; Jason Spencer, “Sanford Backs Plan to Put Fewer Non-Violent Offenders in Prison,” Spartanburg Herald Journal, April 22, 2010, http://www.goupstate.com/article/20100422/ARTICLES/4221030; “South Carolina's Public Safety Reform:  Legislation Enacts Research-Based Strategies to Cut Prison Growth and Costs” (The Pew Center on the States, June 2010), http://www.pewtrusts.org/en/research-and-analysis/reports/2010/07/06/south-carolinas-public-safety-reform.

141. Interview with Nathan Deal, August 5, 2015; Interview with Rich Golick, June 17, 2015; Interview with Stacey Abrams, June 18, 2015.

142. Interview with Jay Neal, December 6, 2013.

143. Interview with Kelly McCutchen, December 4, 2013.

144. “2012 Georgia Public Safety Reform:  Legislation to Reduce Recidivism and Cut Corrections Costs,” The Pew Charitable Trusts, July 11, 2012, http://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/2012-georgia-public-safety-reform.

145. “Georgia's 2013 Juvenile Justice Reform:  New Policies to Reduce Secure Confinement, Costs, and Recidivism,” The Pew Charitable Trusts, July 10, 2013, http://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/georgias-2013-juvenile-justice-reform.

146. Tate Reeves (Right on Crime Leadership Summit, Washington, D.C., May 21, 2014).

147. Brice Wiggins (Right on Crime Leadership Summit, Washington, D.C., May 21, 2014).

148. “Editorial: Justin Jones’ Resignation a Blow to Oklahoma Corrections,” McClatchy–Tribune Business News, June 20, 2013, http://search.proquest.com/newsstand/docview/1369742782/141E370DFB938DD7442/1?accountid=11752.

149. Associated Press, “Bill Dead , but Commission Will Review Sentencing Ideas,” The Journal Gazette (Fort Wayne, IN), April 14, 2011; Jan Moller, “Prison Sentence Reform Efforts Face Tough Opposition in the Legislature,” The Times-Picayune, May 16, 2012, http://www.nola.com/crime/index.ssf/2012/05/prison_sentence_reform_efforts.html.

150. John Kennedy, “Chiles, Bush Say Crime Top Priority,” Sun-Sentinel, October 23, 1994, http://articles.sun-sentinel.com/1994-10-23/news/9410220338_1_prison-construction-program-lawton-chiles-state-s-crime-problems.

151. Dagan, “The Tea Party Gets Something Right.”

152. Olivia Nuzzi, “Prison Reform Is Bigger in Texas,” The Daily Beast, April 12, 2014, http://www.thedailybeast.com/articles/2014/04/12/prison-reform-is-bigger-in-texas.html.

153. Bryan D. Jones and Frank R. Baumgartner, The Politics of Attention: How Government Prioritizes Problems (University Of Chicago Press, 2005)., esp. at 20.

154. Downs, A., “Up and down with Ecology: The Issue Attention Cycle,” Public Interest 28, no. 1 (1972): 38 Google Scholar.

155. Weaver, Vesla M., “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21, no. 02 (2007): 230–65, doi:10.1017/S0898588X07000211 CrossRefGoogle Scholar. It is important to note that the process that led to Democratic shifts on incarceration and welfare is different than what we are describing in this paper. The Democrats shifted grudgingly and largely out of electoral necessity. Few Democrats recognized their new position as dictated by their core principles, but as something required for political survival. Their shift resembles the change in Republican positions around, for example, coverage of prescription drugs in Medicare—a response to electoral weakness—rather than the process of change we describe in this paper, which comes out of electoral strength.

156. Naomi Murakawa, The First Civil Right: How Liberals Built Prison America (Oxford University Press, 2014); R. Kent Weaver, Ending Welfare As We Know It (Brookings Institution Press, 2000).

157. Dagan and Teles, “Locked In?”

158. David W. Rohde and John Aldrich, “The Logic of Conditional Party Government: Revisiting the Electoral Connection,” in Congress Reconsidered, ed. Lawrence Dodd and Bruce Oppenheimer, 7th ed. (Washington, D.C.: CQ Press, 2001).

159. The level of state party polarization varies across states, but one of the states in which it is the most severe is Texas. Shor, Boris and McCarty, Nolan, “The Ideological Mapping of American Legislatures,” American Political Science Review 105, no. 03 (2011): 530–51, doi:10.1017/S0003055411000153 CrossRefGoogle Scholar.

160. A good example of the failure of intra-movement meaning making is the “creation care” initiative's failure to convince substantial numbers of evangelicals to support anti-global-warming measures. This shows that, when efforts at movement position change threaten party coalitional integrity—as creation care did—we should expect very strong strategic efforts to push back against it.