Conservatives rethinking mass imprisonment and the War on Drugs

January 26

Conservative policy analyst Reihan Salam has an interesting column on on conservatives who are reconsidering their movement’s traditional support for mass incarceration and the War on Drugs (see also here):

New Jersey is one of America’s most affluent states. Yet many of its largest cities are scarred by both high crime and an incarceration boom that has made a stint in prison a disturbingly common rite of passage, particularly for young black men. Though many believe that mass incarceration is a cure for violence, as it incapacitates potential victimizers, problems arise when incarceration becomes so commonplace that it is destigmatized, and that it ruins the lifelong earning potential of young men caught up in its net, few of whom go into prison as irredeemable villains….

What we’re dealing with is an enormous waste of human potential that harms not just the young men who wind up in prison, but also the families, and the children, they leave behind.

And that is exactly how [New Jersey GOP Governor Chris] Christie described the “failed war on drugs” in his second inaugural address. After stating that “every one of God’s creations has value,” and that the loss of a job can strip people of their dignity and self-respect, he railed against the notion that “incarceration is the cure of every ill caused by drug abuse,” and he promised to make drug treatment programs more widely available. He described his ultimate goal as creating “a society that understands that every life has value and no life is disposable,” a neat way of connecting his pro-life convictions to the cause of treating drug offenders more humanely.

As Salam notes, Christie’s speech could be motivated at least in part by a desire to divert attention away from the recent scandals plaguing his administration. But the very fact that a likely GOP presidential contender might think that denouncing the War on Drugs and mass incarceration is a politically effective diversion is itself an indication of changing attitudes on the right. Moreover, Christie is not the only conservative to shift positions on these issues in recent years. Political scientists David Dagan and Steve Teles give other examples in this 2012 article. As they point out, growing conservative skepticism about mass incarceration and the War on Drugs is driven in part by a realization that prisons have many of the same flaws as other large government bureaucracies that “submit to the temptations of monopoly, inflating costs and providing shoddy service.” In addition, they note that many social conservatives have gradually come to realize that the War on Drugs is bad for family values. Some GOP-controlled state governments are seeking to reduce imprisonment in order to save money in difficult fiscal times.

Libertarians, of course, have long opposed the War on Drugs and sought to make the criminal justice system less punitive. The same was true of a small number of conservative critics of the drug war, most notably William F. Buckley. But significant mainstream Republican and social conservative support for such views is a relatively new phenomenon. I wish that the change had come sooner, but late is still better than never.

It is not yet clear how far this rethinking will go. Polls show that conservatives and Republicans are far more likely to oppose marijuana legalization than most other groups. But if these ideas continue to spread on the right, it could well accelerate the already substantial decline in support for the War on Drugs among both the general public and political elites. Even if it encompasses only part of the movement, a conservative shift on these issues could make it easier for liberal and libertarian critics of the War on Drugs to make progress in liberalizing drug laws and cutting back on incarceration for nonviolent offenses. Conservative support would make it tougher to attack reform efforts as “soft on crime.”

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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