Right on Crime: Conservative Reform in the Era of Mass Imprisonment

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A Dissertation Submitted to the Graduate School of the University of Cincinnati

In Partial Fulfillment of the Requirements for the Degree of

Doctorate of Philosophy (Ph.D.)

In the School of Criminal Justice of the College of Education, Criminal Justice, and Human Services

2017

Derek Cohen

B.S., Bowling Green State University, 2008 M.S., University of Cincinnati, 2009

Dissertation Committee: Francis T. Cullen, Ph.D. (Chair) Edward J. Latessa, Ph.D. John P. Wright, Ph.D. Cheryl Lero Jonson, Ph.D.

ABSTRACT

Over the past half-century, the United States has embarked on an unprecedented prison- building endeavor. Motivated by historical context, political gamesmanship, and rising crime rates, voters in the late 1960s began to reward politically “tough-on-crime” candidates—that is, those who promised to combat crime and other social problems through increasingly punitive sanctions. To accommodate this shift in public policy, the nation embarked on a sustained mass imprisonment movement, constructing .3 million new prison beds by 2009. Initially championed by conservative Republicans and later adopted by Democrats, it seemed as if this policy choice became an irreversible preference of the American electorate. Nowhere were the practical and political effects of “tough-on-crime” policy more apparent than in the State of Texas. With the state prison population increasing 1,522 percent from 1960 to 2009, Texas’s criminal justice system was seen as the archetypal punitive system, featuring revocation-prone terms of probation, long sentences, and the prolific use of capital punishment.

However, after decades of prison construction, Texas’s politicians began to balk at perpetuating the status quo. Tom Craddick, the Speaker of the Texas House of Representatives, appointed a reform-minded chairperson of the Corrections Committee in 2005, and in 2007 the state passed a monumental reform package that continues to be emulated in other states. This legislation was pushed in large part by conservative activist Marc Levin, the director of the

Texas Public Policy Foundation’s Center for Effective Justice. After the success experienced in

Texas, Levin formalized the reform effort as “Right on Crime,” the conservative criminal justice reform campaign.

Levin’s campaign has grown from a one-man operation focused on Texas sentencing policy to a multistate, 14-person endeavor addressing all aspects of state and federal criminal justice policy. More importantly, Right on Crime has effectively channeled the criminal justice policy discussion away from reflexive “tough-on-crime” prescriptions and focuses it on policies that improve public safety and lower the overall cost burden of the criminal justice system, all while enlisting a stable of well-known conservative leaders. The goal of this dissertation to is to tell the story of the remarkable invention, success, and future prospects of the Right on Crime

Campaign.

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This dissertation is lovingly dedicated to my son, Aleister.

ACKNOWLEDGMENTS

First, I must thank the individual responsible with fleshing out the concept of this dissertation: Dr. Francis T. Cullen. In working for the Texas Public Policy Foundation and at

Right on Crime, I failed to grasp the watershed importance of conservatives changing their perspective on crime and punishment. I simply thought, “Well, it makes better sense to run the criminal justice system under this new philosophy than the old, so why not?” What I was unable to discern was how monumental this shift was and how it took the impeachable bona fides of a deep red state like Texas to show that reform was “politically safe.” Even when Dr. Cullen had articulated this to me, I was still skeptical. However, as the project developed and I talked to a broader group of stakeholders inside and outside of Texas, the picture became far clearer. Dr.

Cullen also provided mentorship and motivation on the work itself, helping me find time in my schedule to read and write, and “cracking the whip” when necessary. I will be forever grateful for his mentorship, support, and friendship.

A fantastic committee also supported this project: Dr. Edward J. Latessa, Dr. John Paul

Wright, and Dr. Cheryl Lero Jonson. I am immensely appreciative of Dr. Latessa investing his highly sought-after time and in his practical corrections of the criminal justice reform gospel.

Dr. Wright provided a much-needed ideological counterbalance to the general discourse of academic criminal justice, ensuring the accuracy of pronouncements regarding doctrinal conservatism. Dr. Jonson, who I had always thought of more as a peer, proved that it was possible to be both friend and mentor; the perfect combination for an external reviewer. Of course, this short list is not to exclude the contributions of all other members of the University of

Cincinnati faculty.

The conservative shift on criminal justice would not be a topic for analysis if not for the work of those at the Texas Public Policy Foundation. Elevating principle above convention is what allowed Jerry Madden and Marc Levin to begin to right the ship, and I will be eternally grateful for the chance they took on hiring me back in the summer of 2013. Granted, certain elements of Right on Crime’s work arguably lengthened the course of this dissertation, but the experience I gained in working with (and sadly sometimes against) the Texas State Legislature is invaluable.

Lastly, I would like to thank my father, Jeff Cohen. Historical context aside, I would never have been able to complete this dissertation if not for the mentorship you have provided since I was a child. My siblings and I had humble beginnings, though due to your constant, selfless sacrifice we never wanted for much. Working two jobs while putting yourself through graduate school—all with a young family—was a direct example I was able to draw from. Even though the events of the past decade might seem to the casual observer to be “suboptimal,” they have only served to strengthen the bonds between Jake, Rachel, and us. None of our accomplishments would be possible without the strong example that you set as the head of the family.

It has been said that one’s acknowledgments section is per-word far more difficult to write than the dissertation itself. Having taken a far more indirect and meandering route through the entirety of my college career, I have had the opportunity to cross paths with some of the most brilliant minds in academia, law, and policy. Providing proper tribute in these scant few pages to all those whom I am better off for having known would be impossible. Unlisted family, friends, and colleagues have all contributed immensely to this endeavor, and I will forever be indebted to them.

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TABLE OF CONTENTS

ABSTRACT ...... ii

ACKNOWLEDGMENTS ...... vi

CHAPTER 1: LAW AND ORDER IN AMERICA ...... 1 Conservatives and Mass Imprisonment ...... 5 Criminal Justice in the “Solid South” ...... 8 The Birth of the “Tough-on-Crime” Republican ...... 11 Nixon Adopts the “Tough-on-Crime” Mantle ...... 13 Criminal Justice Policy during the Reagan Administration ...... 16 The Policy Prescriptions of “Tough-on-Crime” ...... 19 Determinate Sentencing...... 20 Three-Strikes Laws ...... 21 Mandatory Minimum Sentencing Laws ...... 22 Truth-in-Sentencing Laws ...... 23 Tough on Delinquency ...... 24 Conclusion ...... 26

CHAPTER 2: MASS IMPRISONMENT IN TEXAS ...... 28 Becoming a Red State ...... 29 The Estelle Decision ...... 32 Embracing Mass Imprisonment ...... 35 Embracing Capital Punishment ...... 38 Cracks in the Penal Harm Movement ...... 42 Conclusion ...... 46

CHAPTER 3: CREATING RIGHT ON CRIME ...... 48 Fertile Ground: The Context for Right on Crime ...... 49 The Texas Public Policy Foundation and the 79th Legislature ...... 50 “We Were Facing a Crisis:” The 80th Legislature ...... 55 The 2009 Juvenile Justice Reorganization ...... 58 The Genesis of Right on Crime ...... 61 Texas and Beyond ...... 69 “Nixon goes to China:” Right on Crime’s Statement of Principles ...... 69 Exporting Conservative Criminal Justice Reform ...... 74 Conclusion ...... 76

CHAPTER 4: RIGHT ON CRIME IN ACTION ...... 78 The Organization of Right on Crime ...... 78 How Right on Crime Works ...... 83

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Disseminating Texas’s Take on the Justice Reinvestment Model ...... 84 Georgia ...... 89 Louisiana ...... 93 Oklahoma ...... 99 Alaska ...... 105 Federal Reform Work ...... 111 Conclusion ...... 119

CHAPTER 5: THE FUTURE OF CONSERVATIVE CORRECTIONS ...... 122 The Future of Right on Crime ...... 123 Continuing JRI Reforms in Other States ...... 124 New Initiatives...... 127 The Future of Conservative Corrections ...... 133 What Conservatives Believe...... 134 Understanding “Tough-on-Crime” Through the Conservative Lens ...... 139 Understanding Right on Crime Through the Conservative Lens ...... 141 The Future of “Tough-on-Crime” Versus Right on Crime ...... 145 Conclusion ...... 148

REFERENCES ...... 151

APPENDIX: LIST OF ACRONYMS ...... 166

CHAPTER 1

LAW AND ORDER IN AMERICA

Prior to the Second World War, criminal justice, as a matter of politics, was seen as an obscure and relatively unimportant facet of domestic policy. Crime was relatively constant, and states were almost wholly responsible for exercising the police powers delegated to them in the

Constitution. However, years of building racial animus post-Reconstruction and voter dynamics in the South converged to create a political climate where state and federal criminal justice would be forced to the forefront of political and policy debates.

This relative tranquility changed in the years following the war. Racial tensions were fomented by several high-profile incidents in major cities, while crime rates started to increase in the early 1960s. After nearly a century of being locked out of the South, Republican strategists saw a unique opportunity to address the post-Civil Rights Movement’s concerns of white voters.

Starting with Barry Goldwater’s presidential candidacy in 1964, crime policy was used as a central criticism against the lackluster policy product of previous administrations.

While the 1964 electoral cycle resulted roundly in success for the Democrat nominee

Lyndon Johnson, Goldwater managed to carry five Deep South states, demonstrating the efficacy of his strategy and the erosion of the Solid South voting bloc. More importantly, Goldwater’s inroads in the South established progressive criminal justice policy as a “third rail” issue in political discourse—one in which both Republican and Democrats to come would be punished for embracing reforms defined as “lenient (or soft) on crime.” Using a similar strategy in 1968,

Richard Nixon won the White House with an explicit “law or order” campaign.

The political capital earned through promises to “get tough” has contributed to policymakers’ long-standing attempts to increase criminal justice expenditures at all levels of

1 government. The federalization of many criminal offenses traditionally left to the states coupled with the ongoing paralysis of Congress have made for a American criminal justice apparatus that is focused squarely on the messaging of a punitive crime-control agenda with little analysis being lent to if such policies actually beget positive results.

In recent years, however, these seemingly unassailable embrace of law and order politics has manifested a stunning reversal. As the principal jailer and proximate financier of criminal justice policy, state legislators and executives have started disabusing themselves of solely punitive rhetoric and begun looking at alternatives to rote incarceration. States such as Texas,

Alabama, and Mississippi have all recently passed omnibus reform packages that change the fundamental nature of the state’s criminal justice system.

Instrumental in Texas’s reform packages, the Center for Effective Justice (a policy center of the Texas Public Policy Foundation (TPPF), a conservative free-market think tank, was soon overwhelmed with requests for assistance from other conservative states following the sweeping changes enacted during the 2007 and 2009 legislative sessions. To accommodate these requests,

TPPF increased the staff and resources dedicated to criminal justice reform. The ensuing campaign, titled “Right on Crime” as a nod to both the underlying ideology and correctness of its policy prescriptions while evoking the “tough-on-crime” shorthand, has since spread to 42 states nationwide.

By applying traditional conservative principles to the problems posed by “mass incarceration,” Right on Crime has been changing the narrative of the traditional “tough-on- crime” offices and voting blocs into one that advocates fiscal restraint, individual responsibility, and limited government. While Right on Crime’s scope-of-work varies depending on the nuances of the specific state or federal agenda item, personnel work closely with legislative

2 executive offices, other right-leaning free market think tanks, and even left-of-center advocacy groups.

This dissertation will tell the story of Right on Crime campaign and the effect it has had in informing policy discussion at the local, state, and national level. In changing the prevailing narrative from reactionary incarceration and solely punitive penal policy, Right on Crime has advocated for policies supporting community supervision for appropriate offenders, altering of arbitrary statutes that change over time (such as felony theft threshold that grows intrinsically more punitive through inflation), and prioritizing the delivery of rehabilitation, all while improving public safety and saving taxpayer dollars.

The first two chapters of this work discuss the historical antecedents to overincarceration, the rationale underpinning this unprecedented growth in the prison population, and how individuals and groups to the political right began the process of revisiting past orthodoxies in favor of new approaches. This first chapter, “Law and Order in America,” examines the forging of “tough-on-crime” political rhetoric as applied in modern-day politics, starting from the 1964 candidacy of Barry Goldwater proceeding through the current state of the United States’ criminal justice system. This account includes how the confluence of historical racial tension, crime increases, and electoral politics made for a landscape where the most politically-variable position on criminal justice matters was almost entirely punitive at the expense of corrective treatment.

Chapter 2 delves into Texas’s unique history and how the erstwhile republic became the nation’s most punitive state. This chapter will also establish the foundation for how the string of passionate conservatism that led the state to become the world’s most persistent incarcerator facilitated the path to achieving reforms previously thought unattainable.

The second half of this dissertation starts by telling the story of the formative years of

Right on Crime and its work with the Texas legislature, pioneering one of the nation’s first reinvestment strategies to obviate the need to build more prisons, and the how this change in ideology started to spread nationwide. Chapter 3 discusses the political landscape in Texas in the face of a looming prison crisis and how a reputable conservative think tank, the Texas Public

Policy Foundation, started the modern-day push for conservative criminal justice reform.

Successes from the 80th Session (2007) of the Texas Legislature will be highlighted, specifically those that implemented the nation’s first “justice reinvestment” strategy. These legislative victories created the request for assistance from other states, and the birth of the Right on Crime campaign. This chapter also features a cursory discussion on the philosophical underpinnings of conservativism, and how the principles of Right on Crime fits within them.

Chapter 4 describes the Right on Crime model of criminal justice reform. This section also examines strategic partnerships ROC has entered into, such as those with the Pew Charitable

Trusts’ Public Safety Performance Project and the Council of State Governments’ Justice Center, and how these partnerships have been leveraged to produce the best outcomes based on the nuanced political landscape of the state. Chapter 5, The Future of Conservative Reform, attempts to apply the new, Burkean understanding on conservative thought on the matter to apply to remaining issues in the states and federal government.

CONSERVATIVES AND MASS IMPRISONMENT

Simply put, the genesis of mass imprisonment as the de facto policy option for punishment of all types of crimes over the last half-century belongs to Republicans. While not explicitly intent on driving incarceration to unsustainable levels, the rhetoric employed by candidates like Goldwater, Nixon, and Reagan led to policies producing that effect. Policies

4 aimed at rehabilitation, alternatives to punishment, or decriminalization were seen as a “third rail;” an issue that to advocate for would inevitably lead to political damage. Democrats were unable to muster a coherent response to the “tough-on-crime” push, and were in turn made to engage in similar campaign rhetoric and policy-making.

The remainder of this chapter explores how the relative per-capita stasis of state and local prison systems of the past grew into the expansive incarceration-based institution of the present; specifically, how the unique history of the South, rising crime rates, and campaign strategy shifted criminal justice from a banal public policy item to a bipartisan core tenet. With World

War II and the United States’ increased role abroad acting as catalyst, political hopefuls were able to engage in demagoguery on issues of race and economics to solidify “tough-on-crime” rhetoric as a cornerstone of campaign politics.

The modern-day criminal justice system can trace its roots back to the 1960s. While never previously in the forefront of most Americans’ political preferences, unrelated factors

(such as racial animus) latent since the American Civil War, the beginnings of what became the known as the “Great American Crime Wave,” the public souring on rehabilitation, and the modernization of popular media converged to create a landscape that allowed for the political weaponization of justice policy.

Prior to World War II, the creation and execution of criminal justice policy was almost entirely within the purview of individual states. The 10th Amendment to the United States

Constitution reads that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In the context of this Amendment and its empowering of states’ rights, individual states were

5 collectively seen as responsible for setting the appropriate parameters for behavior and enforcing penalties for violations thereof (Barnett, 2004).

However, the decades that followed World War II witnessed an unparalleled expansion in local, state, and federal lawmakers seeking to use the criminal justice system to combat the rising crime rates. Mirroring previous public campaigns that were waged against specific criminal types, classes, and ethnicities (e.g., prostitutes, drug users, juvenile delinquents, and the Irish), these targeted, limited applications of criminal justice policy produced little more than small per- capita increases in criminal justice capacity in the first half of the 20th century (Travis &

Western, 2014).

During World War II, however, the United States saw much more concentrated tumult in civil society. Historically marginalized ethnic groups, such as African Americans and Mexican

Americans, collectively grew weary with biased enforcement of criminal law and structurally discriminate policies such as the Jim Crow laws. In response, minority communities started to engage in civil unrest.

In Detroit, the national subsidization of industrial output pursuant to President Franklin

D. Roosevelt’s “arsenal of democracy” ideal created unintended social tension. As one of the leading industrial centers of the world during World War II, much of the Detroit area’s production capacity was repurposed to produce materiel for the war effort. Further, much of the existing industrial capacity was made to run constantly, all creating a great need for labor.

As such, an estimated 400,000 laborers migrated from southern and southeastern states in search of work in the Detroit. These groups consisted mostly of low-skill African Americans and European immigrants, seeking better economic opportunity. However, with jobs and housing space both in short supply as capacity was brought online leading to dense living

6 conditions and idle time, these groups frequently engaged in and were victimized by violence both from within and from existing residents of the area. This tension culminated in the Detroit

Race Riots of 1943, a multiday manifestation of social violence leaving 34 dead and millions of dollars of property destroyed before the Michigan National Guard was deployed to restore order

(Capeci & Wilkerson, 1990).

Just weeks earlier, Los Angeles’s “Zoot Suit Riots” illustrated similar tensions. In the decades preceding the War, Hispanic Americans and Mexican Nationals migrated to the city in droves for employment. Settling mostly in barrios—low-cost, poor quality dense housing communities—this group was frequently maligned by popular media as shiftless and delinquent, edifying the “Pachuco” subculture as implicitly criminal.

A high-profile murder in June of 1943 brought already-fraught race relations in southern

California to a boiling point. The death of Jose Diaz and the subsequent media coverage of the

Sleepy Lagoon murder trial provoked thousands of American service members into vigilantism, specifically targeting young Hispanic males. As the riots were quelled, the vast majority of the service members were deemed to be acting in self-defense (Daniels, 1997).

This racial animus perpetuated in the decades following the resolution of international hostilities. Minority communities, portions of which who served the United States and her allies during the War, persisted in their demands for enfranchisement and equal representation under law pursuant to the 14th Amendment to the United States Constitution, and ultimately the abolition of racial segregation and supportive institutions. Many white communities saw this movement as lawless, and felt that desegregation would beget an increase in criminal behavior.

This growing sentiment led to calls for President Harry Truman to enact more punitive criminal sanctions from conservatives and assistance to help increase police training, beat

7 officers, and prosecutors at the state and local level. Further, liberals and progressives too called for an increase in federal authority and assistance pursuant to the abuses of local and state police agencies. The majority of this legislation did not pass, but their foray marked the nascent stages of the “tough-on-crime” movement (Travis & Western, 2014).

Their concerns were not without merit. In the first half of the 1960s—the bellwether years of the “tough-on-crime” movement—crime was increasing. From 1960 to 1965, the violent crime rate in the United States increased 24.4 percent, while property crime offenses increased 30.2 percent (Federal Bureau of Investigation, 2015). More saliently, violent crime in the southern states increased even more dramatically—rising over 30 percent during the same period. This ambient racial tension coupled with observable increase in criminal behavior presented the Republican Party a political opportunity for unlocking the southern states. These included Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South

Carolina, Tennessee, Texas, and Virginia.

Criminal Justice in the “Solid South”

The South was a near-monolithic Democrat stronghold for a majority of the century preceding the 1960s. Following the end of the American Civil War, the defeat of the

Confederacy manifested in the collective Southern psyche a subnational identity. Political and institutional divides on matters of economics and states’ rights that proximately led to Southern secession remained present in the minds of Southerners long after the guns fell silent. The

Reconstruction Era and pursuant policies and the installation of Republican state governments were seen as a wholesale refutation of this identity and, in the eyes of some, that the South was a nation occupied by separate nation hostile to its interests (Grantham, 1988).

Fissures began to emerge in the cohesion of the postbellum South administrative state as

Republican leadership in Washington began to draw back Reconstruction policies. General amnesty was granted to many confederate soldiers and officers in 1872, allowing them to once again hold public office. Coupled with the deep divide and disorganization between the

Northern and Southern wing of the Republican Party, Southern Democrats began to claim office seats in conservative districts. By 1878, the old Confederacy had exorcised the Republican

Party—under the sobriquet “The Party of Lincoln”—from nearly all public offices. The “Solid

South” represented a new single-party voting bloc, espousing ideology and public preference in a manner bordering on nationalism. The Solid South persisted for nearly a century thereafter, electing only Democrats for most local, state, and federal positions (Grantham, 1988).

During the post-World War II era, national sentiment towards criminal justice policy had also begun to shift. “Individualized treatment,” as championed by the Progressive reformers, was the dominant ethos of correctional policy since the beginning of the 20th century. This model was oriented toward applying the criminal sanction that will lead to the best long-term outcomes to for the public and for the offender. Policies like probation, parole eligibility, and indeterminate sentencing all share a common lineage in the belief that a “one size fits all” approach to criminal punishment fails to account for the individual nuances of each offender

(Rothman, 1980). The predominant rationale for varying sentences for similar criminal behavior was to ensure that the appropriate amount of rehabilitative therapy could be delivered.

While progressive rehabilitation-oriented policies were widely accepted in the postwar era, the proliferation of “tough-on-crime” politics began to erode the principles which supported their inclusion in the criminal justice system. Further, opponents of rehabilitation found fertile

9 ground for their critiques as public perception of existing crime police became one of excessive lenience.

Conservatives took umbrage with the lack of retributive punishment that was used to demonstrate moral opprobrium with criminal behavior and seen treatment as a quintessentially

“soft on crime” approach to combating near-existential social troubles. Liberals criticized the widely variable sentences meted out in the name of rehabilitation, and as such saw these sentences as manifestations of systemic bias and discrimination. This occurred in tandem with the creation of the American Legal Institute’s Model Penal Code, a formalized creation that, while well-intentioned, divested much of the discretionary authority from judges and prosecutors, as well as several contentious decision stemming from the Warren Court that expanded Fourth, Fifth, Sixth, and Eighth Amendment protections for the accused (Murakawa,

2014). This confluence of factors has led to a general souring on the American criminal justice system by the general public leading up to the 1964 presidential race.

Faced with an increasing crime rate, downward trending attitudes towards the extant criminal justice system, a heretofore intransigent voting bloc in the South, and with racial animus freshly stoked by the signing of the 1964 Civil Rights Act, both parties were forced into political response. Much like the schism that existed between the Northern and Southern wings of the

Republican Party during and immediately following Reconstruction that weakened its cohesion in the postbellum South, so too were the Democrats split on matters of civil rights. Liberal northern Democrats supported expanded enfranchisement and civil liberties, while conservative

Southern Democrats opposed the expansion of what was viewed as federal government ingress on matters traditionally under state sovereignty (Grantham, 1988).

The Birth of the “Tough-on-Crime” Republican

In 1964, the Republican Party nominated Barry Goldwater, a two-time senator from the

State of Arizona. Goldwater, who later came to be viewed as the iconic progenitor of the modern conservative movement and one of the many ideological founding fathers of contemporary libertarianism, his foray into the criminal justice policy sphere was typically party- line prior to his presidential candidacy. His better-known policy positions were traditionally that of the conservative populist, resisting the encroachment of unionism and communism, and advocating from conservative fiscal policy. His outward opinion on race relations and segregation was essentially nil, though he did lend implicit support toward the desegregation of

Phoenix (Goldberg, 1995).

After winning the Republican nomination in 1964, Goldwater was faced with a path to the Presidency. The most recently elected president, Democrat John F. Kennedy, enjoyed fairly widespread popularity across party lines, peaking in his opening days in office and never dropping below a 58 percent job approval rating in nationwide polling (Gallup, 2013).

Kennedy’s assassination in November of 1963 elevated Lyndon B. Johnson to the Oval Office, a conservative-leaning Democrat from Texas. During the 1964 Democratic Primary, Johnson failed to win the popular vote—Pat Brown, sitting governor of California, received a 10 percent larger share of the vote—but managed to carry the plurality of states that held primary elections.

Presented with the historical southern reticence toward casting a ballot for a Republican candidate and facing a Texan whose policy positions mirrored even those within his own party, the Goldwater campaign devised a strategy to reach white southern voters on the issue where the

Democrats were least able to construct a cohesive policy argument: promising a return to law and order by hardening the criminal justice system.

Liberal rhetoric on criminal justice issues at the time was disjointed. Some had rightly identified the racial orientation of conservative messaging surrounding criminal justice issues, but wholly failed to act when a demonstrable increase in crime started. Others thought that the ever-increasing availability of social programs would in time ameliorate the increasing crime rate, while Johnson campaigned on the creation of “The Great Society.” Some liberals advocated for increased spending on police, while other thought doing so would lead to increased brutality and the unequal enforcement. Many simply ignored it as a policy matter

(Flamm, 2005).

With an ear to the fears of what was occurring in the inner cities and that desegregation would allow crime to spread further, (Goldwater, 1964) enshrined what became known as “law and order” politics in his 1964 nomination acceptance speech.

Security from domestic violence, no less than from foreign aggression, is the most

elementary and fundamental purpose of any government, and a government that

cannot fulfill that purpose is one that cannot long command the loyalty of its

citizens. History shows us—demonstrates that nothing—nothing prepares the way

for tyranny more than the failure of public officials to keep the streets from bullies

and marauders.

Goldwater rightly observed that ensuring public safety is one of the core roles of government, and couched this observation in language directly appealing to the federalist tendencies of the southern voter. However, he continued, “We see this as the result of a fundamentally and absolutely wrong view of man, his nature and his destiny. Those who seek to live your lives for you, to take your liberties in return for relieving you of yours,” suggesting that the criminal justice policy of the day failed to provide an environment where law-abiding

12 citizens could flourish due to liberal politicians’–and by extension, rehabilitation-oriented policy–misguided view of human nature (1964).

This rhetorical flourish managed to partially bear the political fruit Goldwater sought.

While Goldwater only carried 38.5 percent of the popular vote to Johnson’s 61.1 percent, five of the six states he carried were in the Deep South: Louisiana, Mississippi, Alabama, Georgia, and

South Carolina. Moreover, Goldwater’s campaign demonstrated the political viability of the of punitive criminal justice policy through the intermingling of racial tension, rising crime rates, and voters relatively uninformed on the issue.

While the efficacy of “tough-on-crime” politics were shown as effective in the 1964 election, the true potency of law-and-order messaging in presidential politics would not be fully brought to bear until 1968. After having only served one elected term in office, President

Johnson withdrew from candidacy amid failing health and troubling early polling data in the northern states. The Democratic Party nomination eventually was granted to Hubert Humphrey, a progressive senator from Minnesota and Vice President in the Johnson administration.

Nixon Adopts the “Tough-on-Crime” Mantle

The Republican Party, after four years of continuing racial anxiety since Johnson’s election, nominated Richard M. Nixon. Nixon, a conservative congressman from California before serving two terms as President Eisenhower’s Vice President, had a similar political style and preexisting issue set to Goldwater, although in the years following the passage of the Civil

Rights Act the public became more inured to the explicit racialization of criminal justice policy.

Still, the general voter (especially those in the South) had lingering grievances with the

Democrats’ perceived inability to address growing crime rates and general weariness with technocratic model of government (Edsall & Edsall, 1992).

Despite reticence toward the civil rights movement and associated unrest, there was a growing general acceptance for the proposition of equal rights. This presented a problem for campaign strategists seeking a reinvigoration of Goldwater’s strategy to break up the Solid South voting block: how to engage in “dog whistle politics” without making explicitly racial overtures

(Haldeman, 1994). The answer adopted by campaign staff came to be known as the “Southern

Strategy,” an approach targeting white, blue-collar workers using coded language undiscernible as racially motivated by those not sensitive to the rhetoric.

The messaging tactic of the Southern Strategy relied on calling attention to the rising crime rates having gone unabated by the social welfare programs of Johnson’s “Great Society,” implying that the benefits experienced by marginalized communities came at the economic expense of established communities, and that the criminal elements therein were) pursuant to the concurrent “due process revolution”) unable to be adequately punished under extant jurisprudence (Kohler-Hausmann, 2010). The group targeted by this rhetoric—lower-class southern whites—were not necessarily conservative or party Republicans, but felt forgotten themselves and were at odds with the anti-Vietnam War protests in the rest of the nation, culminating in what was seen to be a rejection of traditional American values. This “silent majority,” as they came to be known, sided with Nixon over Humphrey, leading to a 43.4 percent to a 42.7 percent victory margin in the popular vote for Republicans. The five states carried by

Goldwater in 1964, however, were carried by anti-desegregationist and Alabama Governor

George Wallace as a third-party candidate (Grantham, 1988).

As a central tenet of the Nixon candidacy, “tough-on-crime” politics has demonstrated political effectiveness. By highlighting the perceived erosion in social order of the late 1950s and 1960s, “law and order” messaging resonated with many conservatives and right-leaning

14 nonparty voters. With the zeitgeist seemingly trending toward anti-Americanism and the proliferation of drug use, conservatives viewed rehabilitation-oriented policies were just one more example of politicians being more concerned with the wellbeing of the offender rather than the victim. Through implicitly and explicitly punishing Humphrey’s and the Democrat’s fractious criminal justice policy, Republican messaging was able to penetrate the previously unassailable southern voting block as well as reaching white voters in states that carried by

Johnson in 1964.

In 1971, President Nixon launched the “War on Drugs,” a prohibitionist approach to the social ills party to trafficking in substance abuse. Derivative of the turn-of-the-century campaigns focused on alcohol prohibition, the War on Drugs sought to apply deterrence and incapacitating punishment to those who seen as destroying the inner cities, often through stiff penal sanctions (Kohler-Hausmann, 2010). This presented an interesting policy pivot from the efforts of the early Nixon Administration, which adopted a public health approach to substance abuse problems by prioritizing treatment and rehabilitation.

The model for the Nixon’s “War on Drugs” borrowed heavily from tandem effort then- afoot in New York under Republican Governor Nelson Rockefeller. The eponymous

“Rockefeller Drug Laws” were amongst the first in the nation to solidify long-term mandatory minimum sentences and disallowed certain forms of plea bargaining for a broad swath of drug offences (Kohler-Hausmann, 2010). Concurrently, the New York legislature authorized additional funds to open 31 new courts to handle the increasing number of drug cases.

The superficial effects of this punitive approach to drug sentencing were seemingly positive: felony arrests, indictments, and convictions all dropped markedly after the law’s passage (National Research Council, 1983). However, the indicator most descriptive of justice

15 being served—the percentage of felony arrests resulting in a conviction and incarceration— remained static at 11 percent (Joint Committee on New York Drug Law Evaluation, 1978).

Despite the prevailing national sentiment of tacit support for punitive sanctions, the

Rockefeller Drug Laws were not uniformly supported by conservatives. Conservative movement progenitor, former New York mayoral candidate, and Goldwater supporter William F. Buckley,

Jr. was critical of the policy, highlighting the moral equivalency implicit in punishing substance abuse offences at the same threshold as serious violent crimes.

Nationally, policies pursuant to the “War on Drugs” met with similar results. Carrying a substantial foreign policy element, the federal sphere fully mobilized to combat the growing specter of drug abuse domestically and abroad. The Office of Drug Abuse and Law Enforcement

(later consolidated in the Drug Enforcement Administration), in fact, made almost 6,000 arrests during the 18 months of its existence (Whitford & Yates, 2009).

Criminal Justice Policy during the Reagan Administration

“Tough-on-crime” rhetoric and policy experienced a resurgence during the Reagan

Administration. Formerly an actor and the governor of California, Ronald Reagan could have been presumed to strike a moderate stance on issues of domestic policy. However, tensions with the Soviet Union coming to a boil and economic stagnation being in the forefront of the

American psyche, Reagan’s 1980 presidential candidacy could be characterized as reaction to the policy shortcomings of the Jimmy Carter presidency. Carter continued the same “War on

Drugs” policies of Nixon and his immediate successor Gerald Ford, though couched in the rhetoric of proto-Nixonian treatment and rehabilitation. Reagan capitalized on this designated weakness in domestic policy and, coupled with Carter’s perceived weakness in foreign affairs, campaigned on aggregate further to the right of previous Republicans. This platform package

16 resonated with the independent and moderate voters, leading to the colloquial term, “Reagan

Democrat.”

In office, Reagan’s chosen policies on drug abuse and trafficking were a step beyond those of his predecessors. Perhaps the most notable policy, the Anti-Drug Abuse Act of 1986, greatly restricted the application of federal parole and erected mandatory minimum sentences for federal marijuana offenses. The legislation also enshrined the 100-to-1 crack-cocaine to powder cocaine disparity, mandating that 5 ounces of 5 ounces of the former was functionally equivalent to 500 of the latter (Public Law 99-570, 1986).

While Reagan’s two-term presidency did feature several key victories in the realms of foreign and economic policy, the long-term coarsening effect on public discourse surrounding substance abuse was palpable. Survey results indicate that shortly after Reagan took office, only

2 percent of the public felt that drug abuse and trafficking was the most important issue facing the country. By 1986, this number had surpassed a majority, due in no small part to the divisive rhetoric surrounding the issue prior to and in the wake of the increases in punitive sentences

(Travis & Western, 2014).

By this point in American history, the decades of persistent retributive messaging on issues of criminal justice had had managed to shift policy discussion to one of punishment and enforcement. Having seen the success bore through “tough-on-crime” Republican rhetoric,

Democrats begun advocating for similar policies. Most notably, Texas Governor Anne Richards and New York Governor Mario Cuomo made explicit overtures to such policies in their campaigns and during their administrations. “Tough-on-crime” politics had become a common mechanism for reaching independent and moderate voters concerned with criminal activity, and

17 contrary points of view were swiftly punished by conservatives who had coalesced a coherent ideological stance on the matter.

So fully complete was the policy pivot that one of the central policy achievements of two-term Democrat President Bill Clinton was the Violent Crime Control and Law Enforcement

Act of 1994. A legislative effort largely championed by a bipartisan coalition of moderate congressmen, the bill greatly increased federal funding given to the states in order to build new prison facilities, expanded the list of offenses eligible for capital punishment, and included a

“three strikes” sentencing scheme for repeat offenders.

The 1994 Crime Bill was proof that, starting with the demagoguery of the 1960s, the political conversation on matter of criminal justice truly shifted from one of rehabilitation treatment to one of rote punishment. Conservatives abdicated several of their most innate political traditions – specifically, of limited government, accountability, and liberty – at a politically opportune moment to capitalize on shifting attitudes towards crime and punishment.

Liberals and progressive, traditionally oriented towards rehabilitation, followed suit in fear of political reprisal. It was not until the second Bush Presidency that this monolithic stance on crime and justice started to fracture.

The commonplace acceptance (and the extended political viability) of “tough-on-crime” politics has produced unintended consequences for policymakers and the public. Between 1925 and 1972, the annual percent change in the federal and state incarcerated population was almost three percent; roughly similar to general population growth over the same time period (Langan,

Fundis, Greenfeld, & Schneider, 1988). This incarceration rate of 110 out of every 100,000

Americans was remarkably consistent during the half-century. However, from 1972 to the present, the imprisonment rate grew roughly six to eight percent, per year, and beginning to taper

18 off early 2000s. This produced an incarceration rate of 471 per 100,000 Americans, roughly 4.3 times greater than the preceding historical period (Travis & Western, 2014).

The effects of “mass incarceration” are not uniformly distributed. Certain racial, age, and gender clusters, namely young African-American males, are far more likely to find themselves incarcerated relative to their proportion of the population than others (Neal & Rick, 2014). While the disparate concentration of mass incarceration is evident, the underlying causes are much murkier, with no consensus on one prevailing mechanism of enforcement (Engel & Cohen,

2014). As such, addressing disparity though simple one-off policy changes is difficult, if not futile.

Further, this overreliance on incarceration in lieu of indeterminate has exploded the capital and personnel costs of administering state correctional systems; a combined growth of

146.4 percent in the years 1971-1979 alone (Bureau of Justice Statistics, 1980). In 1979, the

United States collectively spent just under $6 billion ($35 billion in 2012 dollars) on local, state, and federal systems. By 2012, that number had increased to $80.8 million (Bureau of Justice

Statistics, 2015). The “tough-on-crime” policies that found favor in this era are directly causal of the glut of prison expansion seen from the late 1970s, as discussed in the following section.

THE POLICY PRESCRIPTIONS OF “TOUGH-ON-CRIME”

As with many promises made on the campaign trail, failure to translate rhetoric into actionable policy would render one vulnerable during reelection. Having seen the surfeit of supportive voters that “tough-on-crime” rhetoric drove to the polls, policymakers from the

President of the United States down to state representatives started altering laws to suit the more punitive stance the public was seen to be taking on offenders. The “punishment imperative,” as

Clear and Frost (2013) have termed it, was manifested through the passage of a variety of types

19 of laws. Five punitive initiatives are discussed below: determinate sentencing, three-strikes laws, mandatory minimum sentencing laws, truth-in-sentencing laws, and attempts to get tough on juvenile offenders.

Determinate Sentencing

The most direct method of ensuring the legislative and executive prerogative of being

“tough-on-crime” was through determinate sentencing. While not a uniform set of policy prescriptions, determinate sentencing laws functionally reduced or removed any form of discretion in the carrying out of issued sentences. In short, such laws ensured that the time served following a finding of guilt were almost perfectly correlated with what could be expected given the charge and the severity.

Maine was the first to establish a determinate sentencing scheme in 1975, followed shortly thereafter by California in 1976. Although Maine eliminated parole, the state did not place firm statutory boundaries on the range of time that any particular crime might merit.

California’s reform agenda went further; eliminating parole and establishing aggravating and mitigating factors that created a predictable, modular sentencing structure where the various attached elements added or subtracted a defined number of months or years to a sentence (Tonry,

2016). Determinate sentencing schemes spread under the “tough-on-crime” era to other states, such as Arizona, Indiana, Illinois, and North Carolina.

Three-Strikes Laws

Perhaps the most common type of sentence enhancement are habitual offender laws.

These laws specify that–after an individual has been found guilty of a certain number of

20 offenses–a finding of guilt can (and oftentimes must) carry a harsher punishment than had an individual with no record committed the offense.

Texas was the first state to establish a “Three-Strikes”-style habitual offender statute since at least 1952, as illustrated in Spencer v. Texas (1967). Borrowing from the baseball idiom, an offender who has been found guilty of or plead guilty to two felony offenses if found guilty of a third felony, must be sentenced to no less than 25 years imprisonment (Texas Legislative

Reference Library, 2015). However, studies examining the effectiveness of habitual offender laws and “three-strikes” specifically have failed to uncover meaningful public safety benefits

(e.g., Kovandzic, 2006; Males & Macallair, 1999; Stolzenberg & D'alessio, 1997).

California, the most populous state in the Union, followed suit 41 years later passing the most onerous “three-strikes” law in the nation. Unlike provisions in other states, the California law allowed the prior misdemeanors to qualify as strikes. It was not until a recent spate of reforms was it required that the instant offense substantiating the third “strike” be a serious or violent felony (Zimring, 1996).

The spread of habitual offender statutes was palpable. From 1993 to 1994, 14 states including California enacted new “three-strikes” laws. While this included “Old South” states like Georgia, Louisiana, North Carolina, Tennessee, and Virginia, there was no central nexus of states that passed these laws. Also passing “three-strikes” laws during this biennium were

Colorado, Connecticut, Indiana, Kansas, Maryland, North Carolina, New Mexico, Washington, and Wisconsin. This trend continued in 1995 and 1996, with the several other southern states

(Arkansas, Florida, and South Carolina) enacting “three-strikes,” along with Montana, North

Dakota, Nevada, New Jersey, Pennsylvania, Utah, and Vermont.

In 2006, two additional states enacted “three-strikes” legislation: Alabama and Arizona

(Chen, 2008). The final state to enact this type of law was Massachusetts; having enacted H.

4286 in 2012. Presently, 27 of the 50 states have “three-strikes” laws for dealing with habitual offenders.

Mandatory Minimum Sentencing Laws

Mandatory minimum sentencing laws, much like determinate sentencing schemes, were seen as a way to divest judges of their perceived biased discretion (whether leniency or racially based) and mete out sentences more akin to legislative prerogative. Mandatory sentences established a firm floor to the sentencing range that may be given for a particular offense.

Mandatory sentencing statutes are those that remove judicial discretion, perceived to be excessively lenient, from calculation of a sentence to be served. In practice, these laws established a firm floor on lower boundary of a criminal sentence; if a person is found guilty of a charge bearing a mandatory minimum, they will be given now fewer than the specified number of months or years. Mandatory sentencing laws are typically applied to crimes of violence, drug trafficking, or the combination of the two. For example, several mandatory minimum sentences were erected surrounding the use of firearms in the commission other offenses. These sentence enhancements attach to base sentences of drug trafficking and other nonviolent offences if, when proven, the offender was also proven to have possessed, displayed, or brandished a firearm (Ohio

Revised Code, 2002).

Mandatory sentencing laws were fairly commonplace preceding the advent of blanket

“tough-on-crime” legislation, with all but one state having adopted such laws for murder and drunk-driving offenses prior to 1983 (Shane-Dubow, Brown, & Olsen, 1983). Their prevalence increased exponentially by 1994, applying to crimes such as rape, armed robbery, and those

22 committed by those with existing records (Austin et al., 2013). Unfortunately, the sentences have been a failure in terms of deterring the criminal behavior they were intended to address

(Durlauf & Nagin, 2011). Further, procedural shortcuts like plea bargaining were expressly identified by lawmakers as contrary to the specific deterrent effect that criminal law was supposed to deliver and were eliminated in specific circumstances. In response, prosecutors and judges circumvented many of these laws by charging crimes outside the ambit of these laws

(Tonry, 2009; Beha, 1977).

Despite this paucity of empirical support, mandatory minimum sentences today are an especially contested element of federal criminal justice reform. Certain minimums, such as those established by the Armed Career Criminal Act of 1984, have been cast by a small handful of current U.S. senators as an untouchable issue. For example, Senator Tom Cotton (R-Arkansas) has equated reforms to such statutes as commutation for the most-violent offenders locked up in the federal system. This is irrespective of the thousands of “violent criminals” who are released on a daily basis at the conclusion of their issued sentences and without the benefit of parole (Lee,

2016).

Truth-in-Sentencing Laws

Another mainstay of “tough-on-crime” criminal justice policy are “Truth-in-Sentencing”

(TIS) laws. Compelled via grant programs authorized in the Violent Crime Control and Law

Enforcement Act of 1994, states were offered the chance to receive a portion of dedicated federal funds (some $10 billion in total authorized over the course of five years) if they met specific criteria. This criteria was focused on offenders serving out no less than 85 percent of their assigned sentence. Compliance with the 1994 Crime Bill required that the state has already

23 passed mandates that violent offenders must serve 85 percent or more on average or that the state has passed a law requires such from all violent offenders within three years (Turner et al., 2001).

The effect of states adopting TIS laws is apparent: offenders classified as “violent” were serving a far greater portion of their assigned sentence as statutory mechanism that offered earlier release were scaled back or eliminated (Tonry, 2016). The rationale behind TIS-oriented laws was popular; over half of the states (28) enacted compliant statutes (Sabol et al., 2002). In states such as Oklahoma, the sentencing law that subsumes nearly all violent offences (i.e., 21

O.S. § 13.1) id colloquially known as “85 percent crimes” (Oklahoman Editorial Board, 2015).

Tough on Delinquency

The juvenile justice system also was not immune from the effects of the politicization of criminal justice. Since its inception at the turn of the last century, the juvenile courts had an orientation different from that of the adult criminal court. Rooted in the “child-saving” philosophy, the court was established under the doctrine of parens patrae, or “father of the land.”

This doctrine has three main tenets: (1) “that childhood is a period of dependency and risk in which supervision is essential,” (2) “the state should play a primary role in the education of children and intervene…whenever the family setting fails,” and (3) “the appropriate authority to decide what is in the child’s best interest is a public official” (Zimring, 2005, p. 6). Thus, the burden of raising the child fell upon the state, who in its benevolence would decide the proper treatment for the youth. Ideally, this legal approach allowed the state to place youths in treatment facilities or residential settings without having to draw a child through an arduous and potentially damaging trial. In reality, the collective shift from rehabilitation to punishment sidetracked the juvenile court from its intended goals: intervention in the lives of troubled youth

24 and diversion from the harm associated with corrections settings (Steiner, Hemmens, & Bell,

2006; Steiner & Hemmens, 2003).

To combat the decades of perceived leniency, legislatures began adopting waiver laws.

Waivers, certifications, or “statutory exclusion” laws, are policies that allow juvenile court- eligible offenders to be tried in an adult criminal court. Emblematic of the “get tough on crime” mentality, making juveniles eligible for adult trails was believed to have a deterrent effect on the sentenced youth along with other youths contemplating similar actions or to allow a punishment lengthy enough to achieve incapacitation commensurate with the crime. This pivot from an explicit focus on rehabilitation to one of punishment for the most ostensibly redeemable segment of the population signaled what seemed to death knell for a justice system oriented toward

“fixing” the offender (Feld, 1999).

Further, juveniles were finding themselves involved in the criminal justice system for innocuous behavior that was, traditionally, not criminalized. This expanse of the use of “status offenses”–that is, criminal behavior that would not be criminalized if the perpetrator was above the age of majority in the state the offense occurred–also marked the “tough-on-crime” application to juvenile justice.

The policy intent since the 1970s has been to deinstitutionalize the less-serious juvenile offenders through the use of juvenile probation or school-based intervention, specifically forwarded by the Juvenile Justice and Delinquency Prevention Act of 1974 (Zimring, 2005).

However, the 1984 reauthorization of the act inserted language allowing judges to detain youth for status offenses. While this was expressly forbade in the original bill, this amendment allowed for confinement pursuant to the violation of a valid court order, or VCO. This punitive

25 focus on low-level juvenile offenders followed the trajectory of the adult system, leading to an estimated 8,404 youth being confined for a status offense in 2010 alone (Levin & Cohen, 2014).

As a result of “tough-on-crime” laws targeting minors, incarcerated juvenile populations have grew immensely since the solidifying of “tough-on-crime” policies. The number of adjudicated juveniles incarcerated increased from 105,900 to 167,300—an increase of 58 percent in the 12 years from 1985 to 1997 (Sickmund, Sladky, & Kang, 2015). Similarly, the use of probation for adjudicated and non-adjudicated youth skyrocketed nearly 87 percent over the same period as juvenile law expanded in lockstep with general criminal law. This rise is even more startling as these increases occurred during an expansion of due process rights afforded to juvenile that have been seen to have a somewhat-mitigating post hoc effect on sentence length

(Feld, 1988).

CONCLUSION

The growth of punitive law at the expense of rehabilitation persisted for a third of the past century. By prioritizing punishment, length, and austerity, lawmakers moved away from a system of corrections to one of coercion. This shift subsumed most of the nation, leading to a criminal justice system oriented to delivery of time behind bars and penal harm versus preparing an individual for reentry.

Texas, too, mirrored this national trend. The policies enacted during the 1980s, 1990s, and specifically during the 1994 rewrite of its penal code, served to establish Texas as the quintessential “tough-on-crime” state. In fact, until the mid to late 2000s Texas led the nation in per-capita incarceration, at great expense to the taxpayer and to the human capital of the state.

At this point, however, policy changes were enacted that ameliorated this trend, and established

Texas as the illustrative model of how to balance punishment with rehabilitation and

26 reintegration. In the chapter that follows, the story of Texas corrections is conveyed. This account helps to establish the context out of which the Right on Crime initiative emerged and came to exert a salient policy influence in the United States.

CHAPTER 2 MASS IMPRISONMENT IN TEXAS

The expansion of the punitive criminal justice policy in the throughout the latter half of the 20th century was commonplace throughout the country. According to the “punishment rate,” an index score that weights a state’s incarceration rate by average time served for Part I offenses, every state in the nation became more punitive from the thirty year period from 1983 to 2013

(Pew Charitable Trusts, 2016). While this period did contain a marked increase in criminal activity in the 1980s due to drug trafficking and other associated offenses, the punishment rate has yet to recede.

For its part, Texas is at its core a state that does not look kindly upon criminal activity. In the punishment index, Texas ranks 10th in the nation (p. 4), 24 percent greater than the national average. Since the researchers used sentencing data from 2013, five years after the Texas correctional reforms were enacted, it is likely this same metric historically would show a higher ranking.

Likewise, Texas’s incarceration rate has, since the zenith of “tough-on-crime” policy, outpaced that of other states. In 1978, Texas admitted 81 individuals per 100,000 residents on new charges to state prisons, compared to the United States’ 57, over 42 percent more. This trend persisted through 1980s, 1990s, and 2000s, with the Texas admissions rate outpacing the national average by nearly 22 percent through 2014 (Bureau of Justice Statistics, 2015).

While this unrestrained growth established Texas as the without-qualification leading per-capita incarcerator in the world, the strain that it placed on the state criminal justice system and public coffers contributed also became the impetus for reform. It was in this context of mass

28 incarceration that a state-based conservative think tank, the Texas Public Policy Foundation, began to question traditional “tough-on-crime” policies.

This chapter will catalogue Texas’s historical transition from part of the Democrat- controlled Solid South to Republican mainstay and how that segue, timed with adoption of

“tough-on-crime” politics, set a policy course that fomented mass imprisonment. It will also examine how U.S. Supreme Court precedent influenced the development and management decisions of the state prison system. This chapter will also examine the margins of “tough-on- crime” policy application in Texas’s assumed mantle of the leading user of capital punishment in the United States.

In spite of these punitive bona fides, Texans were not inured to alternatives. What Todd

Clear (1994) deemed the “penal harm” movement–the policy campaign of inflicting superficial pain on offenders by toughening sanctions at the expense of rehabilitation–began to lose sway amongst the electorate. Innovations such as prison ministries, entrepreneurship training, and openness to alternative processes such as drug courts began to take hold in the early part of the

2000s. These “cracks,” to paraphrase Listwan et al. (2008), provided the footholds for reform- minded conservatives to offer policy solutions that maintained Texas’s mantle as a punitive state while returning to the conservative principles of rehabilitation and redemption.

BECOMING A RED STATE

Like the majority of the Deep South, Texas underwent a transition from Democrat to

Republican control in the latter half of the 20th century. Equal parts fallout from Reconstruction- era policies and the dominant political parties then-positions on domestic issues, the post-bellum

South represented a monolithic Democrat voting bloc. This bloc was so strongly unified on

29 party-line voting preference that it was apocryphally known that Southern voters would sooner elect a “yellow dog” than Republican to public office (Conlin, 2013).

This transition has been seen most keenly in the results of elections for statewide public office. Famously, Texas has not elected a Democratic Party candidate to public office since

1994. That year’s electoral slate featured Democrat wins for the offices of Lieutenant Governor

(Bob Bullock), Attorney General (Dan Morales), and Comptroller of Public Accounts (John

Sharp). The 1994 gubernatorial race also marked Republican and then-future president George

W. Bush’s defeat of incumbent Ann Richards, a progressive feminist from Austin (Selby, 2012).

Other offices had transitioned fully during previous electoral cycles. Rick Perry—the eventual governor, two-time presidential candidate, and Right on Crime signatory—ran for

Commissioner of the Texas Department of Agriculture, defeating incumbent Jim Hightower in

1990. Interestingly, Perry originally won elected office under the Democratic Party in 1984 as a state representative out of Haskell County in northwest Texas. His campaign for Agriculture

Commissioner marked his first foray as a Republican.

Democrats lost their hold on other offices far earlier. The governorship saw its first shift from a Democrat holder in 1979 with Bill Clements being the first Republican to occupy the governor’s mansion since the end of Reconstruction in 1874. The Republican’s occupancy was short-lived, with Clements losing to Democrat Mark White in 1983 before retaking the office in

1987. Ultimately, Clements was defeated by Richards in 1991.

The United States Senate seat next up for reelection in 2020 from Texas was the first statewide office to transition from consistent Democrat to Republican. Held by Lyndon Johnson since 1948, Democrat William Blakely was appointed to finish the extant term when Johnson assumed the vice presidency. However, Blakely lost the election for the remainder of Johnson’s

30 term to Republican John Tower, who held the seat until his retirement in 1984. The seat was then won by Republican Phil Gramm, who served in the senate for nearly 18 years before relinquishing the positon to the former Texas Attorney General and current incumbent John

Cornyn in 2002.

Similarly, the United States Senate seat next up for reelection in 2018 was uniformly held by Democrats from 1875 to 1993. Appointed by Governor Richards, San Antonio

Representative Bob Krueger was the last to hold the seat (albeit in an interim capacity following the departure of Lloyd Bentsen) before losing the remainder election to Republican Kay Bailey

Hutchison. Hutchison held the seat until her retirement in 2013, being replaced by current incumbent and former Republican presidential candidate Ted Cruz.

Regardless of party, Texas elected officials frequently campaigned (and delivered) on

“tough-on-crime” rhetoric, even before the penal harm movement took root nationally. During her campaign to unseat Governor Clements and again in her reelection bid against George W.

Bush in 1994, Governor Richards used messaging not dissimilar to that used by Barry Goldwater back in 1964. Her application of the rhetoric went so far as the tacit acquiescence of applying capital punishment to 13 year-old offenders; juvenile justice being a salient campaign issue in

1994 (Verhovek, 1994). Under Governor Richards’ administration, the state increased prison capacity by upwards of 100,000 beds (Wilson, 2014).

While this landscape has only recently shifted (e.g., with Senator Cruz’s sponsorship of the Smarter Sentencing Act and Senator Cornyn using his position as Senate Majority Whip to push the CORRECTIONS Act and the Sentencing Reform and Corrections Act of 2015), Texas still boasts a “tough-on-crime lineage. This lineage is apparent in the legacy left by seminal U.S.

Supreme Court decisions naming directors of the Texas Department of Corrections (TDC) or the

Texas Department of Criminal Justice (TDCJ) as primary defendants.

THE ESTELLE DECISION

Remarkably, the vast expansion of Texas’s prison capacity was heralded as a civil rights advance occurring during the “due process revolution” of the 1960s. During this period, constitutional jurisprudence generally shifted from deference to government and its actors to a stance more defensive of procedural rights and liberties. Marquee cases like Mapp v. Ohio

(1964) and Katz v. United States (1967) edified the primacy of the individual over the state, establishing procedural safeguards in criminal prosecution.

This expansion of rights continued to the incarcerated as well. Prior to the 1960s, federal courts generally demurred when petitioned to hear cases involving the rights of prisoners. This

“hands off” approach, driven by deference to federalism and in-facility security, functionally barred inmates from contesting the conditions of their confinement (Jacobs, 1980: p. 433). The finding in Cooper v. Pate (1964) functionally removed the standing barrier in applying civil liberties to prisoners and opened the door for other relief petitions.

Prior to the Estelle decision, Texas’s prisons maximized labor efficiency and institutional control through the “building tender” system. Under this system, guards would entice more established and friendly-to-staff inmates with incentives such as added recreational periods, increased freedom of movement within (and oftentimes outside of) the facility, and even permission to obtain certain types of contraband. In return, these “BT” inmates were expected to maintain order and discipline within their cellblock both directly and through the use of subordinate inmates.

The informal hierarchy of the building tender system was reinforced through the use of inmates known as “turnkeys,” the literal gatekeepers of the facility. Turnkeys controlled access points, managed inmate traffic, and often functioned as an intermediary between the building tenders and the corrections officers. While functionally subordinate to the building tenders, turnkeys often enjoyed the same perks (Marquart & Crouch, 1985).

This informal system allowed correctional staff to use a more detached, supervisory role versus one that required ongoing direct contact with inmates. The building tenders and turnkeys would forward news and gossip received from informants on to the guards who in turn were able to preempt problem encounters or punish inmates for behavior that would have otherwise escaped their notice. If the institutional peace were to break down, guards expected that the violators would be punished, often with harsh physical reprisal. While inmate-on-inmate violence was explicitly prohibited in most facilities, it was a central component necessary to the building tender system.

The abusive practices latent to the building tender system, along with the other structurally persistent constitutional violations, led inmate David Ruiz to file a civil lawsuit in

1972 against the then-director of the Texas Department of Corrections (TDC), Jim Estelle. The suit was subsequently certified as a class action, naming seven other inmates as plaintiffs and the remaining members of the Texas Board of Corrections as defendants (Ruiz v. Estelle, 1980). The

United States, previously ordered to appear amicus curiae, intervened as a plaintiff in 1975 (In

Re Estelle, 1975). After years of litigation, Judge William Justice delivered the summary opinion in December of 1980. Finding in favor of the plaintiffs, the decision issued sweeping orders regarding the conditions of confinement within the Texas prison system.

The building tender system was wholly abolished in the ruling. Further, Judge Justice mandated that TDC hire additional security personnel and develop a more robust method from classifying inmates within facilities. The managers of these facilities also were charged to reduce the number of compliance-related uses-of-force on inmates, as well as improving access to healthcare and the courts.

This change in institutional alignment was not uniformly positive. The vacuum left in the wake of the building tender system allowed for the rise of in-facility violent gangs and institutional deviance. Without the use of coercive force or informal social control to regulate behavior, security personnel felt as if they were divested of all control over the inmates.

Concurrently, the use of solitary confinement—one of the few punishments remaining to bring about inmate compliance—increased by 143 percent in the Eastham Unit alone between 1981 and 1984. The incidents of inmate-on-inmate and inmate-on-guard violence also increased over this period, leading to turnover amongst the guard staff.

Most notably, having been declared overcrowded by the Estelle decision, the state’s prisons were barred from double- and triple-celling inmates. This mandate put severe strain on the TDC’s ability to house inmates under extant capacity. TDC attempted to avert the looming capacity crisis by building overflow tents, while the 68th Legislature passed favorable time-credit policies and enacted a safety valve provision on sentencing. In 1982, TDC was unable to accommodate any new prisoners for a period of 10 days (Marquart & Crouch, 1985).

Even with this additional front-end and back-end leniency, the state’s prison population growth continued. Absent a reevaluation of the sentencing system, more facilities were needed to housing the persistent influx of offenders. From 1981 to the present (under the Texas

Department of Criminal Justice), the state-level facility count grew from 23 to 109 institutions.

The following section will discuss the rapid rise in the number of correctional facilities, as well as the policies that kept them at-capacity.

EMBRACING MASS IMPRISONMENT

During the post-Estelle years, discussion of crime and justice issues quickly developed into forum for “tough-on-crime” grandstanding. The legislative session immediately following the decision—the 70th Legislature in 1987—witnessed a spate of punitive legislation, the most notable being the anti-crime measures introduced by second-time Republican Governor Bill

Clements. When the poorly drafted legislation was amended in committee to fix procedural missteps that could have rendered the bill unworkable, it took a concerted effort on the part of the Republican House Criminal Jurisprudence committee chairman Terral Smith to abate an attack from the political Right (Burka et al., 1987).

The toxicity of the criminal justice issues before the legislature persisted. During the 71st

Legislature in 1989, the intersection between Estelle and the “tough-on-crime” movement began to produce unsustainable policy problems. Conditional releases from Texas prison facilities increased over 29 percent from 1985 to 1989, with many of those being released regardless of risk (Bureau of Justice Statistics, n.d.). The 71st Legislature collectively knew the system had to change, and tacitly agreed to a détente in demagoguery over crime and punishment. The truce failed to hold, with several Republicans attempting to add punitive amendments to all pieces of reform legislation, including a requirement that parolees pay for and take a drug test before being released (Burka et al., 1989).

The first omnibus policy reform attributable to the “tough-on-crime” movement in Texas was the full rewrite of Penal Code during the 73rd Legislature in 1993. This rewriting allowed legislators to tighten language, get rid of archaic and unenforceable laws, reflect a contemporary

35 understanding of extant jurisprudence, and has been deemed one of the best criminal codes in the nation (see, e.g., Robinson, Cahill, & Mohammad, 2000). While the new set of law greatly increased sanctions for violent and gang-related crime, it established mandatory probation for low-level drug possessors. It was these same policies that provided an ample target for tough- on-crime rhetoric during the 1994 election cycle (Calmes, 1999).

This line of attack persisted during the gubernatorial debates. During the October 21 debate, a Dallas resident asked how each candidate planned to reduce crime, qualifying the question to include options other than incarceration. George Bush answered first, suggesting leniency in the Texas juvenile justice system was the root of all crime in the state. He continued to suggest that juvenile certification (the process by which juveniles are deemed to be tried in the adult criminal court) should be available to children as young as 14 (a campaign promise that eventually became reality), that juvenile records should be unsealed, and that the new penal code was out-of-touch with the will of Texans by allowing probation for crack-cocaine possession.

Governor Richards countered, saying that under her administration, “we cut the [prison] release by two-thirds, we have built 75,000 additional state spaces to make sure that we got a room to lock you up if you commit a crime and, what is really most important, what are the results? Crime is down in every major category the Department of Public Safety keeps records for. Is it enough? No sir, it’s not enough, but it shows that we are not helpless, that we can fight back against crime” (KERA-TV, 1994).

Following up, Traci Tong of KERA-TV asked if either candidate would support a bill that would lower the age at which someone is eligible to receive capital punishment from 17 to as low as 13. Governor Richards said she would have to see such a bill and consult with law enforcement before issuing an opinion. She also highlighted several enhanced penalties for

36 violent crime included in the rewritten penal code. Mr. Bush said he was open to the proposal, but expressed skepticism that it would be considered constitutional by the U.S. Supreme Court.

He then reiterated that, despite the statistics cited by Governor Richards, no attempt was made to reform the juvenile justice system.

George Bush went on to win the 1994 gubernatorial race, taking 53.5 percent of the popular vote. While in the governor’s mansion, Governor Bush adhered to the “tough-on-crime” rhetoric of his campaign, pushing for and implementing several punitively oriented policies between 1995 and 2000, such as toughening the juvenile justice code and the proliferation of the

“boot camp” model for juvenile corrections. Echoing the collective sentiment of the state, these reforms bolstered Governor Bush’s popularity (Butterfield, 1999).

During the Richards and Bush governorships, Texas prison capacity grew immensely.

With 41,000 beds in 1990, the state would increase capacity by 266 percent over the course of the decade to 150,000 beds. While Governor Richards did rightly observe during the October debate that a “tough-on-crime” policy agenda must be weighed against the electorate’s desire to make the expenditure, Texas spending on corrections under her administration is indistinguishable from that of Governor Bush.

From 1991 to 1994, an average of 6.1 percent of the state budget was spent on corrections, nearly double the national average. From 1996 to 2000, Texas spent an average of

6.2 percent of the state budget on incarceration. Including 1995, a year that includes expenditures attributable to both governors (and the decade high of 9.1 percent of the state’s budget being spent on corrections), Texas spent over 6.4 of the decennial budget on prisons

(National Association of State Budget Officers, 1990-2000).

With Governor Richards’ increased available capacity and restriction of the Parole Board, the state’s jurisdictional population (including those held in non-state facilities) more than doubled from 51,776 in 1991 to 118,195 in 1994. Similarly, total releases from Texas prisons halved from 36,185 to 18,236 over the same period. By the end of the Bush administration, jurisdictional population in Texas reached 166,719, contrary to the then-half-decade drop in crime (Bureau of Justice Statistics, n.d.).

While Governors Richards and Bush can both lay equal claim to Texas’s burgeoning prison infrastructure, the expansion of the Texas juvenile justice system was brought on nearly entirely during the Bush administration. True to his campaign rhetoric, Governor Bush sought to implement a “tough-love” approach to juvenile justice focused more on punishment and discipline than on rehabilitation through military-style training. During his tenure, Texas’s average daily population of incarcerated youth doubled from 2,823 to 5,646 from 1995 to 2000.

Military-style training in juvenile corrections had folk appeal; stories of incorrigible youths being drafted or offered a diversion to military service where they are “set straight” resonated with the general public. Attempting to mirror this transformation, Texas military-style correctional programs “issued [offenders] bright orange uniforms and their heads are shaved.

They get up early, exercise regularly, and help maintain the facility. They don’t speak unless they are spoken to. We teach them they are accountable for their actions” (Bush, 1999: p. 212).

EMBRACING CAPITAL PUNISHMENT

Similar to the “tough-on-crime” ethos present during the latter half of the twentieth century in Texas, punishment for the most heinous crimes were likewise stiffened. The evolution of Texas’s system of capital punishment followed a similar trajectory to the general criminal code; a long period of relatively inconsequential policy compared to the rest of the

38 nation before embarking on concentrated, meteoric increase over the several decades of the

“tough-on-crime” era.

Texas has employed capital punishment since adoption of the state’s first penal code, one of the “Old Codes” passed into law by the 6th Legislature in 1856 (Texas Legislature, 1857).

Interestingly, while Texas’s unique history may connote an affinity for “frontier justice,” several provisions of the original code contained objectively progressive policy on capital punishment often not codified in other states’ law or established in jurisprudence until over a century later.

For example, Texas’s original penal code prevented a child 17 years of age or younger for being punished by death (p. 8), a policy not applied to the other states until the decision in Atkins v.

Virginia (2002). These polices were eventually eroded, both incrementally since 1856 and then more rapidly during the “tough-on-crime” era.

The harshness of Texas’s current system of capital punishment is further enhanced with the state’s application of the common law felony murder rule, or the law of parties. Like 26 other states in the Union, Texas law allows capital punishment to be given not only to the principle actor during a murder but also any associates who are complicit in the activity. “All traditional distinctions between accomplices and principals are abolished by this section,” the statute reads, “and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice” (Texas Legislative Reference Library, 2016).

Texas’s felony murder rule was codified in 1973 during the 63rd Legislature and signed by Democrat governor Dolph Briscoe. Under Texas’s law of parties, any individual who knowingly drives a potential murderer from the scene of the crime or tampers with evidence could bear the same penalties as the murderer themselves. Several high-profile trials, such as the one of Kenneth Foster, follow a similar fact pattern.

On August 14th, 1996, Mr. Foster and three associates we involved in two armed robberies after a night of drinking and substance use. The group then began tailgating a car occupied by Michael LaHood and his girlfriend Mary Patrick. Pulling over to the side of the road, LaHood and Patrick approached Foster’s car to identify the individuals. One of Patrick’s associates, Mauriceo Brown, exited the car carrying the firearm used in the robberies. A quarrel ensued, and Brown shot and killed LaHood (Marra, 2007).

For their respective roles in the homicide, both Foster and Brown were sentenced to capital punishment; Brown for the commission of the offense and Foster for transporting Brown.

Brown was executed in July of 2006 for his principle role in LaHood’s death. Foster was scheduled to be executed in August of 2007, but had his sentence commuted by Governor Perry three hours prior to his execution (Blumenthal, 2007).

Since annexation, Texas has been the most prolific executor in the country, putting to death 1,274 offenders since 1845, second only to Virginia’s historic 1,388. However, it should be noted that Virginia’s application of capital punishment began in 1608 and covers offenses not commonly considered worthy of death, such as burglary, horse theft, and slave revolts. Prior to

Furman, Texas had executed 747 offenders, or 5.88 per year since annexation (Espy & Smykla,

2002).

It was the U.S. Supreme Court decision in Furman v. Georgia (1972) that brought

Texas’s then-on-par system of capital punishment to a halt, establishing de facto moratoria on states’ use of the practice. Four years later, the Court’s decision in Gregg v. Georgia (1976) held that the application of capital punishment does not per se constitute a violation of an individual’s

Eighth Amendment protection against cruel and unusual punishment, so long as potentially

40 biased discretion on the part of the jury was limited through the finding of objective elements pertaining to the crime.

Texas’s post-Furman system was joined to Gregg (via Jurek v. Texas, 1976), and in tandem found constitutional. However, the capital punishment system put forth by Texas differed from that of Georgia and several other states party to Gregg which relied heavily on the model penal code’s preferred system of aggregating and mitigating factors. Rather, Texas chose to employ a “capital murder” offense, consisting of a homicide offense that was additionally:

 committed against a public servant (such as a police officer or prison guard),

 committed during the course of a separate felony,

 committed while escaping a penal facility, or

 performed under contract.

Further, juries were asked to evaluate if certain “special issues,” such as deliberation, continued threat to public safety, or provocation were present. If not, the sentence defaulted to life in prison. Perhaps ironically, the rationale behind the acceptance of the extant system in

Jurek was that the narrowly-tailored capital murder statute would apply to a “smaller class of murders” than the earlier iteration of the murder law (p. 271). Since the reinstatement of capital punishment under Gregg, Texas has executed 527 offenders; roughly 37 percent of all executions nationally, ranging between 7 and 62 percent of the total per each year (Espy & Smykla, 2004;

Death Penalty Information Center, n.d.).

Through its application of incarceration and capital punishment, Texas has indisputably claimed the mantle of the preeminent “tough-on-crime” state. However, the “tough-on-crime” philosophy was not entirely uniform. After decades of punitive policies, cracks began to emerge in the façade of harsh sentences with more credence being paid to rehabilitation and reentry.

CRACKS IN THE PENAL HARM MOVEMENT

It was likely that the penal one-upmanship engaged in by both Republicans and

Democrats would eventually provide fertile ground for reform. Since rehabilitation-oriented policies were considered lenient, as both parties’ identities became less disguisable on issues of criminal justice, candidates hoping to distance themselves from their opponent had no option but to appear “tougher” in crime policy matters. This “penal harms race” was made clear during the

1992 presidential campaign when Democrat nominee and Arkansas governor Bill Clinton expressly made a point of pausing his campaign to oversee the execution of a mentally impaired murderer (Frady, 1993). Over time, this trend toward rote punitive policy outpaced the general will of the electorate (Listwan et al., 2008).

Nationally, conservative and libertarian advocacy groups and think-tanks, in the past commonly in league with the Republican Party, began to break ranks. The most predictable dissidence came from the libertarian-leaning Cato Institute. Long opposed to the “War on

Drugs,” the think tank has almost uniformly struck a contrarian position from that of the

Republican Party on matters of criminal justice. While wholly anathema to the Republican and erstwhile conservative position on drugs and crime, the eccentricities of doctrinaire libertarians were tolerated due to their usefulness and common cause on matters of economic and regulatory policy (Tumulty, 2013).

From the ranks of the Cato Institute emerged Julie Stewart, the founding and still-serving president of Families Against Mandatory Minimums, or FAMM. Leaving Cato specifically to found the group in 1991, Stewart quickly rose to national prominence in the policy community by pushing for an amendment to the 1994 omnibus legislation that allowed judges to avoid harsh mandatory minimums for certain drug offenses (Chapman, 1994). This “safety valve” provision,

42 couched in language that suggests it is a measure for judges to modulate prison population via sentencing, was in fact the first legislative pushback against “tough-on-crime” sentencing policy.

The socially conservative Christian faith community, too, began to push back on what they considered the offense to human dignity posed by draconian sentencing laws. Perhaps the most notable faith-based dissidence comes from the work of Prison Fellowship, founded by

Watergate accomplice Charles “Chuck” Colson in 1976. Drawing heavily from the New

Testament’s Gospel of Matthew (“inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me;” Matthew 25:40 KJV), religious conservatives embraced a mandate of ministering and facilitating the redemption of their fallen brothers and sisters. Prison

Fellowship, formerly an organization focusing only on prison ministry, now provides reentry services and lobbying support for criminal justice reform efforts as well.

Even iconic conservative mainstays like the Heritage Foundation began to register positions in opposition to the broad expansion and stiffening of criminal law. In 2001, Ed

Meese—then Public Policy Chairman where he severed since working as United States Attorney

General during the latter years of the Reagan administration—founded the Heritage’s Center for

Legal and Judicial Studies. The new legal policy center focused primarily on issues of overcriminalization or the advancing use of the criminal justice system to punish erstwhile legal activity—oftentimes economic activity and often through non-legislative, administrative rulemaking.

Conservatives who largely agreed with the decades-long expansion of “tough-on-crime” policy and the overuse of incarceration started to push back on the monolithic deference given to pro-incarceration advocacy groups. The associations and unions who represent sheriffs, police officers, and correctional officers often present a united front to state legislatures on issues of

43 pay, professional discipline, and even matters of criminal justice policy (see, e.g., Petersilia,

2008). In 2000, congressional conservatives led by Illinois Republican Representative Henry

Hyde largely dispossessed law enforcement and jailers of a prized method of supplementing budgets—civil asset forfeiture. Resisting law enforcement’s calls that this will empower drug traffickers, Congress passed the Civil Asset Forfeiture Reform Act after several high-profile abuses called into questions the practice’s legitimacy (Cohen, 2014).

While the national sea change on justice policy was notable, the fledgling schism between “tough-on-crime” politicians and the general will of the electorate was becoming more pronounced in state politics. Of all states, Texas, the bellwether of punitive criminal justice policy, began shifting course during the heyday of the “tough-on-crime” movement. In pioneering novel approaches to confinement and the elevation of faith-based and non-traditional forms of rehabilitation, Texas started to undermine the rhetorical flourish necessary to continue toughening criminal laws and building more prison bed space unabated.

One such policy shift was Texas’s creation of the state jail system. In 1993, Texas policymakers found themselves in an untenable situation: the rampant growth in state-level offenders far outpaced the state’s ability to bring additional prison capacity online. The lag was so pronounced that, even with the post-Estelle stopgap sentencing and confinement policies, both the state and local facilities (used to house adjudicated offenders prior to transferring to a state facility, misdemeanants, and the accused detained pretrial) were well beyond capacity prior to the 73rd Legislature. Further, the toughening of Texas’s drug laws made it difficult for judges to triage valuable prison space to those who would pose a threat to the community (Moll, 2012).

The solution the legislature decided upon was to create an intermediate tier of offenses and a separate class of institution to house those who would violate them. Drawing extant

44 offenses from the top level of misdemeanor (Class A) and lowest level of felony (Third Degree), this band of offense typically carried shorter incarceration than most felony offenses, with the deliberate aim of providing added rehabilitation and substance-abuse treatment services. While the promise of Texas’s state jails was never fully prioritized in terms of application or funding

(this policy failure will be discussed more thoroughly in Chapter 5), the initial debate surrounding the creation of state jails showed willingness to reserve prison capacity for high-risk, high-need offenders while being open to alternatives to long prison sentences for those found guilty of less serious offenses.

Texas was also home to one of the first faith-based rehabilitation endeavors in the

“tough-on-crime” era. After a great deal of outreach to the lawmakers from Prison Fellowship, the 75th Legislature instructed TDCJ to create a tier of faith-based rehabilitation programs subject to ongoing evaluation in programs’ effectiveness at reducing recidivism. From this mandate emerged the InnerChange Freedom Initiative, a Christianity-based rehabilitation and reentry program. While the efficacy of Innerchange is hotly contested (e.g., the graduate-only positive analysis of Johnson & Larson, 2008 versus the all-participants assessment of Kleiman, 2003), the program still houses roughly 300 men at the Carol S. Vance Unit in Richmond, 45 minutes southwest of Houston.

In 2004, TDCJ designated a wing of the private Cleveland Correctional Facility in

Cleveland, Texas to house the Prison Entrepreneurship Program (PEP), a business skills based training and reentry program. PEP was instantly lauded by conservatives insofar as it promoted positive entrepreneurship without relying on any public funding from the state (outside of the space used to house the program). The plaudits increased in recent years as cursory evaluations have shown PEP to be effective at reducing recidivism (e.g., see Johnson, Wubbenhorst, &

Schroeder, 2013), though concerns around the program’s selection bias similar to InnerChange exist.

CONCLUSION

In the latter decades of the twentieth century, Texas has emerged as the iconic “tough-on- crime” state. Until recently, Texas had the highest per-capita incarceration rate in the nation, jailing almost 22 percent more than the national average through 2014. Although it has relinquished this dubious honor and continues to trend downward due in part to the reform agendas and policies discussed in subsequent chapters, Texas still maintains this mantle in putting to death more individuals in both raw and per-capita terms than any other state.

Like other states in the South, post-Reconstruction Texas was uniformly Democrat.

Similarly, as the stances and the policy positions of the Democrat Party began to separate from

Southern sensibilities, so too did Texas start electing conservative Republicans in repudiation.

During the 1980s through the 1990s, seats once predictably Democrat started to shift to

Republican control. Office holders such as Phil Gramm and Rick Perry notably changed their party affiliation to Republican in realignment with the prevailing sentiment of the state. By the start of the 76th Legislature in 1999, no Democrats remaining holding statewide office.

Parallel to the Republican ascendency in the South and the gaining momentum of the

“tough-on-crime” movement, a spate of U.S. Supreme Court cases strengthening the rights of prisoners started to influence policy at the state level. Most notably, the Estelle decision forced

Texas’s prison administrators to adopt drastic risk-agnostic release measures that did not resonate with the electorate, framing the policy debate on the binary of punishment versus leniency without room for nuance.

Rather than wage political battle along party lines on criminal justice policy, leaders from both parties in Texas opted to embrace the new “tough-on-crime” paradigm. The 1993 rewrite of the Texas Penal Code, which contained increased penalties for many crimes, was politicized during the 1994 gubernatorial election as being too lenient on criminals. Between the governorships of Ann Richards and George W. Bush, Texas’s jurisdictional prison capacity increased over 222 percent from 51,776 in 1991 to 166,719 in 1999. Likewise, Texas’s post-

Gregg embrace of capital punishment far outpaced that of other states. Eschewing post- annexation protections of juvenile offenders in favor of felony murder rule enhancements, the state’s capital punishment system came to be seen as one of the most aggressive in the county, executing 37 percent of all offenders put to death nationwide since Gregg.

Amidst the unbroken march towards ever-increasing penalties, fissures started to appear in the façade of the “tough-on-crime” movement both nationally and in Texas. Several national think tanks, such as the Heritage Foundation and the Cato Institute, started adopting stances contrary to widely-accepted party line. The energization of Christian conservatives in ministering to prisoners provided a strong foundation for their foray into policymaking. Most notably, Texas lawmakers—through both experimentation and necessity—forwarded novel and progressive policies without facing electoral consequences.

The second half of this dissertation will expound upon how the Texas Public Policy

Foundation, a conservative think tank, used these cracks in the penal harm movement to forward a conservative criminal justice reform agenda both in the state and nationwide.

CHAPTER 3

CREATING RIGHT ON CRIME

This is the story about the invention of Right on Crime, a conservative campaign for correctional reform that included exploring alternatives to mass imprisonment. ROC emerged in large part because of unique events in the state of Texas that created a pressure to explore ways of reducing prison populations that were exhausting institutional capacity and threatening to drain the state’s treasury. But within the context, certain figures—most notably Marc Levin— saw the opportunity to use conservative principles to reimagine American corrections.

Marc Levin and others shattered the near-hegemonic conservative paradigm on corrections—get tough, and then get tougher—that had dominated American correctional policy for four decades. Instead, they believed that a conservative policy agenda should be rooted not in the past but in principles that would, as with public health and education, allow corrections to be analyzed critically in terms of inputs, outputs, and outcomes. This analysis, they argued, illuminated a different path regarding how best to escape the looming future of intractable mass incarceration.

This chapter will discuss the origins of how what began as a one-man, part-time policy study of a heterodox approach to the philosophical function of the criminal justice blossomed into a multi-state and federal campaign that managed to change the public discussion of criminal justice policy. To understand this genesis, it is important to illustrate the context in which it occurs. Two consecutive biennial legislative sessions in which serious structural criminal justice reform was required represented a fork in road for legislators: continue to bear the rote mantle of

“tough-on-crime” and continue to build correctional facilities to house the ever-increasing

48 population, or change course both in terms of both policy and philosophy. The latter was ultimately chosen.

Still, the collective choice for reform was never a default or simple choice. It took the concerted efforts of a small cadre of individuals associated with criminal justice in Texas to advance the policy discussion to a position where center-right legislators and, more critically, a conservative governor could publically support them. The actions of the advocates and legislators involved in the Texas legislative reform process will be centrally highlighted. To that end, if not for the confluence of an established organization recognized in the Austin policy discussion, motivated experts willing to consider heterodox policy changes, an ultimatum, and an innovative communications strategy, conservative criminal justice reform may have achieved only limited success.

This chapter will also discuss the transition from a Texas-centric criminal justice reform effort to one involved in most other states in the union. Specifically, the formalization of Right on Crime, the conservative reform campaign managed and housed at the Texas Public Policy

Foundation, will be analyzed. The method of engagement and the use of high-profile conservative voices to amplify the Right on Crime Statement of Principles will also be discussed.

FERTILE GROUND: THE CONTEXT FOR RIGHT ON CRIME

The convergence of the right institutions, the right people, and the prime political and policy conditions for countervailing the entrenched “tough-on-crime” narrative were fortuitous.

Criminal justice policy discourse during the mid-2000s was no further away from demagoguery of the 1960s and 1970s and, with high-profile incidents such as the Willie Horton furlough (to say nothing of the subsequent political value it brought), there was great disincentive to championing a reform agenda. This phenomenon was no different in the state of Texas, where

49 the post-Estelle Richards/Bush prison expansion has started to represent a severe and persistent drain on public coffers. The fiscal albatross is what eventually invited the scrutiny of a conservative state-based think tank in Austin, the Texas Public Policy Foundation (TPPF).

The Texas Public Policy Foundation and the 79th Legislature

In 1989, conservative activist and philanthropist Dr. James Leininger professed to be at his wit’s end with the state of public schooling in San Antonio, Texas. The status quo, he deemed, was failing the most vulnerable of students. Leininger had only recently become politically active, involving himself in the 1988 race for the Texas Supreme Court. Leininger’s wealth came from a leveraged buyout of the company he founded, Kinetic Concepts, Inc., for

$6.3 billion (Danner, 2011). The company was bought as a floundering hospital bed manufacturer, rebranded, and seen great success once it marketed an advanced hospital bed that included several features for serious wound care (Nathan, 1999).

While Leininger was somewhat familiar with the political landscape in Texas, he admittedly possessed little knowledge of how policymakers, once in office, conducted their business. In a strategy discussion with Fritz Steiger, a campaign manager in the aforementioned

1988 race, Leininger inquired what sort of conservative policy shifts were practical in the state and what was necessary to make them happen. Leininger then pulled a clipped 1986 article from his credenza on the conservative mainstay the Heritage Foundation, atop was handwritten in pen,

“Texas NEEDS one of these! (Texas Public Policy Foundation, 2015).” Leininger made the offer that if Steiger were willing to helm the organization, he would fund it. The Texas Public

Policy Foundation—TPPF—was officially founded later that year.

Due to the TPPF’s relatively small size, limited bandwidth, and scope of the issues it was created to address (i.e., education reform, specifically in the vein of school choice), the

Foundation was relatively silent on matters of criminal justice during the Richards and Bush governorships. While Dr. Leininger also funded the parallel Texas Justice Foundation, the organization’s mandate focused more on the application of justice through the lenses of federalism and limited government—the latter principles trumping direct structural change of the criminal justice system (Nathan, 1999).

Given the limited successes TPPF achieved in the early years, it comes as little surprise that fourteen years after its founding, it was still struggling to carve out a definitive niche in the

Texas policy arena; a politically charged space flooded with moneyed interests and ideologies, many having been present for years. Financially, the Foundation was struggling, and in 2003 the then Executive Director, Jeff Judson, resigned to pursue other interests. Judson’s replacement was Brooke Rollins, Governor Rick Perry’s policy director, who started with a paltry $9,000 in the bank and unable to make payroll. Rollins was able to right the ship financially, and she began diversifying the policy portfolio of the think tank as well as the donors to whom its work appealed (Satija, 2015).

Through the preceding period of economic instability, one donor questioned why— especially considering its imprint on the state budget—the conservative think tank had yet to adopt an issue stance on the burgeoning Texas correctional system. Tim Dunn, an oil magnate from Midland, TX, held a heterodox view of the role of the criminal justice system: While it should be an outlet to express the social condemnation of criminal behavior, this function was secondary to the restoration of the victim (National Network for Safe Communities, 2015). Too often, Dunn believed, the edifice of the criminal justice system concerned itself with violations of “the King’s peace” rather than in making those most closely affected by criminal behavior whole again.

In 2005, Dunn approached Rollins about adding criminal justice reform, specifically focusing on restorative justice, to the Foundation’s issue portfolio. While the tenets of restorative justice strongly echo conservative sentiment—a victim-centric, focus on participant satisfaction, and employing a reduced government footprint in the process—there was no existing conservative scholarship on the philosophy. Finding a conservative messenger for that proved equally difficult as decades of “tough-on-crime” politics had galvanized the criminal justice policy discussion as well as the opinions of those with knowledge of the Texas system.

Through her roles as Governor Perry’s policy advisor and the Foundation’s leader, Rollins had the opportunity to network within Austin’s conservative circles and to leverage those networks to find a reform-minded conservative for the new endeavor. The only candidate that surfaced meeting the requisite level of policy expertise, credentials, and ideological bona fides was a young Austin lawyer named Marc Levin.

A 2002 graduate of the University of Texas School of Law, Levin was quickly moving through southern legal circles. He served time immediately after law school clerking at the conservative 5th Circuit Court of Appeals for Judge William Garwood, a strong gun-rights jurist.

Following that, Levin severed as a staff attorney at the Supreme Court of Texas before practicing private law centered on liberty-oriented cases such as resisting forced annexation. It was during this period in March of 2005 that Dunn and Rollins approached Levin to see if he would be willing to work part-time for the Foundation on criminal justice reform. As the 79th Legislature was halfway to sine die at this point, Levin was only able to provide analysis and support for bills already moving with general consensus (M. Levin, personal interview, August 2, 2016).

During this legislative session, most legislation pertaining to the sentencing and housing of

52 adjudicated offenders was heard in the House Corrections Committee and the Senate Criminal

Justice Committee, the former being chaired by the recently-appointed Jerry Madden of Plano.

Originally from Iowa, Madden had a circuitous route to the Texas Legislature. After graduating with an engineering degree from the United States Military Academy at West Point and serving tours of duty in Germany and Vietnam, Madden settled in north Texas as an engineer at Texas Instruments. He involved himself in politics almost immediately, serving as a precinct chairman before being elected as the Chair of the Collin County Republican Party, a deeply conservative suburban county north of Dallas, from 1984 to 1991. In 1992, he resigned his post to stand for election to the 67th District of the Texas House of Representatives.

Madden won that election and, during his ten terms in the House, served on several relevant committees including State Affairs, Public Safety, and State, Federal and International

Relations, plus terms on the operationally important Calendars and Elections committees. In

2004 prior to the 79th Legislature, Madden approached House Speaker Tom Craddick and asked for a major committee chairmanship. Given his relevant experience as a county chair and tenure on the committee, Madden assumed that when Craddick agreed to his request, he would be given the chairmanship of the Elections Committee. While the Elections Committee ultimately went to

Mary Denny of Fort Worth, Craddick honored his agreement.

Shortly after the 2003 legislative session, Speaker Craddick removed the then-

Corrections Committee Chairman Ray Allen following a handful of interpersonal disputes and allegations of inappropriate relationships with private corrections industry officials. During

January of 2005, Craddick summoned Madden to his office to inform him that he was going to be appointed the chairmanship of the House Correction Committee as Allen’s replacement. To this day, Chairman Madden flippantly remarks that his first two thoughts were: “What did I do to

53 deserve this?” (as the Corrections Committee is not among the more prestigious committees in the Texas House) and “What do I even do?” When he inquired about the latter of Craddick— what he should do—the Speaker told Madden what he deems to be the eight words that changed his life: “Don’t build new prisons, they cost too much (J. Madden, phone interview, August 8,

2016).”

This mandate was puzzling to Madden because he had very limited knowledge of the correctional system. Further, absent any change in criminal justice policy, the state would be facing a second post-Estelle-style crisis in a matter of years. From just 2001 to 2004 alone,

Texas prison admissions had risen 9 percent, while releases from prison had decreased 1 percent

(Bureau of Justice Statistics, n.d.). To address this paradox, Madden reached out to Senator John

Whitmire, a moderate Democrat from Houston and chairman of the Senate Criminal Justice

Committee. Whitmire was no stranger to the looming crisis presented by Texas’s burgeoning prison population, and felt he now had a competent, established ally to work with in the House to achieve the necessary reforms (J. Madden, phone interview, August 8, 2016).

The pair’s first attempt at reform was Madden’s HB 2193. While bed space in Texas prisons was rapidly running out, so too did Texas’s probation system reflect decades of “tough- on-crime” policy. TDCJ’s Community Justice Assistance Division reported that probation terms were 67 percent longer than the national average, thereby limiting the capacity of probation officers. This was further reflected by the readiness of probation officers to file their probationers for revocation, 41 percent of which being for technical reasons in 2004 alone

(Senate Research Center, 2005). To address this trend, HB 2193 sought to reduce probation terms for certain offenses, allow for judicial early termination of probation, and streamline the creation and funding of drug courts in large counties.

The bill had a difficult time passing the House, passing to third reading 90-48 only after adopting several weakening amendments on the floor. Although it passed through the senate mostly unchallenged 30-1, it was ultimately vetoed by Governor Perry. “Attempts to improve this legislation that would have provided greater public safety were rebuffed,” Perry wrote in his veto statement, “ensuring a flawed piece of legislation that would endanger public safety made it to my desk instead of one that could have made needed improvements to our probation system”

(Perry, 2005). Madden admitted that the first attempt at systemic reform was not perfect, and that the various constituencies necessary to support such an effort were not engaged earlier in the process. This lessons of 2005 were taken to heart, clearing the way for the seminal reform success of 2007.

“We Were Facing a Crisis:” The 80th Legislature

Because the necessary reforms were not achieved by the 79th Legislature, Texas’s prison population continued to grow. During the whole of the 79th legislative interim alone, the state’s prison population grew by 2.4 percent, over 4,000 inmates (Bureau of Justice Statistics, n.d.). As a result, despite the preceding two decades of prison construction, the 80th Legislature began

2007 with the prison system above operating capacity. So pressing was the capacity crisis that the state had to begin contracting with county sheriffs for jail space to be used to house the overflow from state facilities (Legislative Budget Board, 2007).

The population projections painted a bleaker picture. While already above system capacity, growth trends at that time indicated that the state would have to house an additional

11,464 prisoners by 2010 (Senate Research Center, 2007). Over five years, the overage would surpass 17,000, adding a cost of $2.1 billion to what the state was already spending on corrections (Glod, 2015). This expansion of the inmate population would require the building of

55 no fewer than four new prisons in three years. Such a correctional future for Texas was contrary to the expressed wishes of Speaker Craddick. Despite this looming reality, the Speaker remained resolute on the charge given to Chairman Madden two years earlier not to build new prisons (J.

Madden, phone interview, August 8, 2016).

Madden, however, spent the interim in consultation with Chairman Whitmire, various criminal justice policy stakeholders, and—most relevant to the future work of Right on Crime— the numerous policy reform groups who regularly interact with the legislature. Prior to 2007, criminal justice reform advocacy was collectively disjointed, engaging only on issues that directly affected their immediate constituency. Convened by Madden both to gather input and to ensure shared understanding of forthcoming legislation, the activist community was then able to cooperatively rally behind the second iteration of omnibus criminal justice reform bill: HB

1678, a bill designed by Madden, Whitmire, Levin, and liberal Texas Criminal Justice Coalition

(TCJC) Executive Director Ana Yańez-Correa (J. Madden, phone interview, August 8, 2016).

Similar to HB 2193, HB 1678 sought to stanch the flow of prisoners to the state system.

To achieve this goal, the legislation reduced the maximum amount of time that certain probationers could be monitored by the state, distally reducing the percentage of revocations.

The bill also provided a direct mechanism through which probationers can have their case file reviewed by a judge, and judges were empowered to reduce probation lengths or terminate monitoring entirely. Finally, the legislation mandated that judges account for time served in rehabilitative settings as credit (Senate Research Center, 2007).

Madden’s strategic planning had reaped dividends. When HB 1678 was heard on the morning of March 19th, the House Corrections Committee heard supportive testimony from

TPPF, TCJC, the League of United Latin American Citizens, the National Association for the

Advancement of Colored People, the American Civil Liberties Union, Texas Criminal Defense

Lawyers Association, and most importantly the Texas Probation Association, the representative body of Texas’s 124 Community Supervision and Corrections Departments (CSCD) and individual probation officers (Texas House Corrections Committee, 2007). Whereas HB 2193 was actively opposed by four major county district attorneys and the Texas Municipal League

(the advocacy group for Texas’s cities), only the Tarrant County (Ft. Worth) district attorney registered his opposition to HB 1678 (Texas House Corrections Committee, 2007; Texas Senate

Criminal Justice Committee, 2005). The Texas Legislature also budgeted, despite the fiscal turmoil, $241 million to build almost 10,000 beds in correctional substance abuse alternatives.

The pan-ideological support for HB 1678 propelled it through the Texas House, receiving only seven “nay” votes from the body’s 150-person membership. When it was heard in the

Senate Criminal Justice Committee, all resistance had abated, with only Marc Levin and one private party testifying in support. On May 21st, the legislation was enrolled following unanimous approval in the Senate. Governor Perry signed HB 1678 into law on June 15th.

The effects of HB 1678 were immediately seen. Even with the hefty initial expenditure to bolster rehabilitation capacity, forgoing the needed expense to expand prison capacity saved the state $444 million in net. The reform package has led to three full prisons being closed by

2013, rather than four or more needing to be built. Under the new community supervision policy, parole revocations dropped by 25 percent from 2006 to 2008, all while Texas’s crime rate continued to fall (Glod, 2015).

While HB 1678 was not the grand criminal justice system realignment that many activists had hoped for, the signing of HB 1678 was a watershed moment for criminal justice reform.

Texas, the nation’s most ostensibly “tough-on-crime” state—with both legislative chambers

57 securely controlled by Republicans and led by a conservative Republican governor—had seemingly “softened” the largest component of the state’s criminal justice system. Texas’s probation system oversaw 431,494 probationers in 2007, 243,149 being supervised for felony offenses. (Texas Department of Criminal Justice, 2007). Further, the bill’s signing represented the “Nixon goes to China” moment in criminal justice: Texas’s “tough-on-crime” bona fides were unimpeachable, making the shift all the more noteworthy.

The 2009 Juvenile Justice Reorganization

Despite the legislative success of the HB 1678 and the appropriation for additional rehabilitation beds, Texas’s criminal justice system was in no position to rest upon its laurels.

While the system had been stabilized and growing incarceration rate blunted, Texas still held

155,076 inmates in state facilities and monitored 426,259 probationers and 105,336 parolees in

2009 (Texas Department of Criminal Justice, 2009). TDCJ alone cost Texans $3.42 billion in

2009, to say nothing of those incarcerated in county facilities (Texas Comptroller of Public

Accounts, n.d.).

In addition to ongoing travails of the adult penal system, Texas’s juvenile justice system was beginning to buckle under its own weight. While nearly all state adult correctional operations are coordinated or directly administered by TDCJ, Texas’s juvenile system was split into two agencies: the Texas Youth Commission (TYC), which oversaw juvenile incarceration and the Texas Juvenile Probation Commission (TJPC), which oversaw juvenile community supervision. In 2009, TYC had $303.8 million and TJPC had $147.2 million, in tandem roughly

$451 million (Texas Comptroller of Public Accounts, n.d.). The results of their operations were ostensibly poor, with nearly half of TYC releasees returning within three years (Levin & Moll,

2011).

Immediately prior to the 2007 legislative session, TYC became enveloped in scandal.

Two TYC facilities, the West Texas State School and the Ron Jackson State Juvenile

Correctional Facility, had sexual abuse scandals brought to light following investigations by the

Texas Rangers (Blakeslee, 2007). These disquieting disclosures motivated the legislature to consider similar reforms to the juvenile justice system during the 80th Legislature, although much of the reformers’ bandwidth was taken up by HB 1678 (J. Madden, phone interview,

August 8, 2016). Even with the emphasis placed upon the adult system reforms. Madden, along with State Senator Juan “Chuy” Hinojosa, reached out to Levin to see if anything could be done to address the juvenile justice in the coming session despite the lack of time to perform the required systemic review.

The result was Senate Bill 103, Texas’s first foray into juvenile justice reform. Since the full review of the juvenile justice system could not have been completed before session, SB 103 essentially corrected some of the more proximate causes of the TYC sexual abuse scandal. The bill created the Office of the Inspector General and the Special Prosecutions Unit. It also mandated that video cameras be placed in common areas of TYC facilities. Notably, the bill contained an effective provision that prevented youths found guilty of misdemeanors from being sent to a state facility (Muldrow & Cohen, 2015). SB 103 was immensely popular, not garnering a single “nay” vote in either chamber.

Lawmakers’ desire to reform the juvenile system persisted through the interim of the 81st

Legislature and, with the additional time to take a look at the whole of the juvenile justice system, were able to implement structural reforms. Texas’s juvenile crime rate and juvenile incarceration count had been declining slightly, but the system still lacked the incentive to keep juvenile felons out of state facilities (Levin & Moll, 2011). The seminal juvenile reform package

59 came in the form of a budget rider on the General Appropriations Act (the Texas state budget) that funded the Community Corrections Diversion Program. The program set benchmarks for juvenile referrals to TYC and authorized TYPC to give grants to local jurisdictions to strengthen community corrections. Should a jurisdiction exceed the referral benchmark, they will begin to lose grant funding (Muldrow & Cohen, 2015).

The 81st Legislature also saw continued work on adult reforms. Most notably, while HB

1679 of 2007 focused on correcting the flow of offenders into prison, key legislation in 2009 focused on release and reentry. HB 93 allowed TDCJ to restore an inmate’s good time credits after suspending them due to infraction or violation if the inmate continued to show good conduct. Further, HB 1711 established a comprehensive reentry strategy for TDCJ, focusing the agency’s activities on evidence-based practices and preserving familial connections (Glod,

2015).

With the addition of the Community Corrections Diversion Program and further adult reforms, Texas now hosted a complete corpus of reforms that stood directly in contrast with the previous half-century of “tough-on-crime” rhetoric and policy. While other advocates were involved in the Texas’s three reform-oriented legislative sessions, only Marc Levin had experience in distilling why criminal justice reform was a conservative imperative. Other conservative states, facing similar capacity dilemmas, took notice and began reaching out to

TPPF for assistance. It was in light of these ever-increasing requests that the decision to create the Right on Crime campaign was made.

THE GENESIS OF RIGHT ON CRIME

With two full sessions of successful criminal justice reforms spanning the entirety of the system completed, Jerry Madden and Marc Levin were becoming common features at national

60 state policy conferences, if for no other reason than the relative novelty of seeing conservatives take what was considered to be a liberal position. While both Madden and Levin reached their stance on criminal justice reform via their conservative affinity for government efficiency, public safety, and redemption, it was not a path yet walked by other conservatives save for those involved in prison ministries. Conservative state lawmakers seeking both reform policy expertise and the political knowledge to accomplish the project were essentially limited to two individuals and to their schedule constraints.

Unfortunately, the demand for such expertise quickly outpaced that which Madden and

Levin in their personal capacities were able to meet. The fiscal turmoil that had rippled through

Texas in the years preceding the 2005 session leading to Speaker Craddick’s mandate was being felt nationwide following the financial crisis of 2007 and 2008. As other states’ budgets tightened and faced ever-increasing shortfalls, lawmakers began experiencing difficulties in making their state budgets comply with constitutional and statutory balanced budget provisions.

Despite the declining revenues, 44 states require the governor or legislature to produce a balanced budget, with 38 states having restrictions on carrying deficits forward (National

Conference of State Legislatures, 2010). With criminal justice having been among the fastest- growing segments of state budgets over the preceding decades, states of all ideological stripes sought solutions that would address their looming fiscal crisis and not create political liability for those willing to engage in reform. However, the issue was far from politically “safe.”

As one might expect, the first foray into criminal justice reform launched in a conservative state by a conservative lawmaker was not without attempted reprisals. Sensing an opportunity to capitalize politically, anti-drug activist Jon Cole, a former staffer in the Office of

National Drug Control Policy and at the Texas Capitol, ran against Madden in the 2008

Republican primary elections. Challenging Madden’s conservative credentials, Cole painted

Madden’s 2007 package of reforms as “soft on crime,” stating that the “catch and release” nature did nothing to improve public safety or the lives of those arrested (Jones, 2011). Although not a factually accurate charge—a great deal of the spending associated with the 2007 reforms was designated to create additional secure treatment beds for drug-abusing offenders—Madden barely emerged from the 2008 Republican primary election winning 51.79 percent of the ballots cast. In two decades of service, the 2008 primary was Madden’s narrowest victory margin: only

265 votes (Texas Secretary of State, 2008). Madden was unchallenged within his party in 2010.

Madden credits his survival in 2008 to the hiring of an external political consultant, Justin

Keener. Prior to the 2007 session, Keener ran his own practice before being hired by Speaker

Craddick to coordinate political strategy and communications for members of the Texas House.

During the 80th Legislature, Keener coordinated the potentially volatile HB 1678 with staffers from other offices and with the media (J. Keener, personal interview, August 8, 2016). Given his experience, he was uniquely suited to communicate the merits of the omnibus policy reforms to

Madden’s constituents. After the 2008 primary election, Keener returned to private practice.

And later, Madden’s leadership role was reduced due to a shift in chamber politics emblematic of

Texas political reputation.

Thus, prior to the 81st Legislature in 2009, Speaker Craddick’s management style of leading from the conservative far-right began to wear on moderate Republicans and Democrats of the Texas House. While Speaker Craddick was revered by constitutionalists and social conservatives, those two did not fall into either of these groups felt that their effect on policy was minimal. Exploiting this intraparty schism, San Antonio Republican Joe Straus, with a coalition of moderate Republicans and every Democrat representative, narrowly took the speakership from

Craddick and fended off a late challenge from the somewhat-more-moderate Republican John

Smithee of Amarillo (Whittaker, 2009). Empowered by the new moderate coalition, Speaker

Straus began to make the chamber more inclusive of Democrats and moderate Republicans. This reorientation was unfortunate for Madden who, having been given his first and only chairmanship by Speaker Craddick, wholly endorsed the incumbent speaker. As a result,

Madden was stripped of his chairmanship of the House Corrections Committee for the 81st

Legislature and was demoted to Vice Chairman (J. Madden, phone interview, August 8, 2016).

Although Madden’s efficacy in Texas criminal justice police was diminished in 2009 and again in 2011 when he has demoted again to member status of the House Corrections

Committee, he became somewhat of a celebrity in state policy circles. In addition to his prominence in appearing before other state legislatures, Madden ascended to the chairmanship of the American Legislative Exchange Council’s (ALEC) Public Safety and Elections Task Force.

As with the Texas House Corrections Committee, Madden was immediately preceded by Ray

Allen who maintained close relations with the private prison industry and gun rights advocacy groups. While Madden was not opposed to private prisons or to expanded gun rights, he sought to use the chairmanship to forward policies leading to better correctional system outcomes.

While ALEC is currently the central clearinghouse for state criminal justice reform model policy, it has a reputation of being only open to conservative and limited government legislators.

This reputation may be deserved; under Allen, the task force adopted the publically maligned model policy of “Stand your Ground,” the acceptable private use of force statute commonly

(though incorrectly) believed to be at play in the death of Trayvon Martin (Kessler, 2014). To provide for more ideological balance and to connect with a separate group of legislative peers,

Madden deepened his involvement with National Conference of State Legislatures (NCSL).

Having spoken to the body several times since 2007, he was quickly made co-chair of NCSL's

Sentencing and Corrections Work Group in 2010. Madden’s position in ALEC and NCSL gave him ready access to state lawmakers desperate for cost-saving policy solutions with the imprimatur of both conservative and liberal support.

In 2011, facing the prospect of two primary challengers, Madden announced he would not seek reelection for the 83rd Legislature in 2013 so as to continue to focus on applying the reforms deemed “the Texas model” nationwide through ALEC and NCSL. Interestingly, his successor in District 67 was a young attorney named Jeff Leach, defeating Jon Cole’s second candidacy in a primary run-off by a wider margin than Madden in 2009.

Although Leach is more outspoken and uncompromising on traditional conservative issues such as abortion and marriage, he has equally taken up the mantle of criminal justice reform from his position on the House Criminal Jurisprudence Committee. Recently, Leach spearheaded a successful campaign to seek a stay of execution for Jeff Wood, a death row inmate scheduled for capital punishment under Texas’s law of parties as discussed in Chapter 2. Wood was party to a robbery-turned-homicide in 1996 where, while not having pulled the trigger, facilitated the escape for the murderer. On August 19th, 2016, the Texas Court of Criminal

Appeals stayed Wood’s execution after hearing from Leach, along with Representatives James

White and David Simpson, other prominent conservative criminal justice reform advocates

(McCullough, 2016). Thus, while Jerry Madden may no longer hold office at the Capitol, the path that he has forged is being walked by his successor and former ideological colleagues; a prospect seemingly foreign to the State of Texas not but a decade before. Madden currently assists Right on Crime as a Senior Fellow, where his expertise is frequently sought during the campaign’s work in other states.

Collectively, state legislators were interested in dialing back some of the more onerous laws enshrined during the “tough-on-crime” era, but still feared political reprisal similar to what

Madden had faced in 2009. Similarly, Levin was becoming fatigued functioning as the country’s lone conservative criminal justice reform evangelist having to cover the entirety of the United

States. Further, conservative discourse surrounding crime and punishment, while nowhere near the fever pitch of the 1980s or 1990s, was still largely punitive. No individual or organization existed that provided political cover, especially for conservatives, to engage in criminal justice reform.

In addition to state legislators coming around to criminal justice reform, state-based think tanks began looking into this policy area. Like the TPPF, nearly all conservative or libertarian research organizations are institutional members of the State Policy Network (SPN). The membership of the SPN varies dramatically, from its largest affiliate of the TPPF with 60 full- time employees to the Rio Grande Foundation (New Mexico) with only 3. Regardless of size, nearly all were fielding increasing requests to weigh in on criminal justice policy matters (M.

Levin, personal interview, August 2, 2016). Other than in Levin, no such policy expert existed in SPN-affiliated groups.

During the interim period between the 2005 founding of the Center for Effective Justice and the launch of ROC, the TPPF was growing also. In 2009, the Foundation hired Keener as the Vice President of Policy and Communications. While he was not solely focused on the

Foundation’s criminal justice reform agenda, Keener recognized the growing demand for criminal justice reform policy expertise from legislators and policy personnel alike.

Unfortunately, the TPPF had neither the bandwidth nor sufficient funding to engage criminal justice reform in all 50 states (J. Keener, personal interview, August 8, 2016).

The demand for reform expertise was also felt by groups who had been making marginal progress on the issue but had yet to change laws in conservative states. Specifically, these groups included the Council of State Governments (CSG) and the Pew Charitable Trusts.

Although the CSG has been marginally involved in Texas criminal justice policy, it has failed to maintain the quality relationships necessary to advance controversial legislation (J. Madden, phone interview, August 8, 2016). In 2007, Pew had launched the Public Safety Performance

Project, a nonpartisan technocratic criminal justice reform initiative that achieved some modest success. However, as discussed in the following section, the PSPP’s operational model requires both conceptual buy-in and active participation from key state lawmakers. This buy-in proved difficult to attain in the more conservative states in the South (Schoenfeld, 2016).

Judge Sharon Keller, the Presiding Judge of Court of Criminal Appeals, had served on the Board of Directors of the CSG’s Justice Center (their criminal justice policy arm) during their involvement in Texas’s reform. During a get-together at a criminal justice policy conference, she and Levin struck up a conversation with Mike Thompson, the CSG’s then-

Northeast Regional Director. A pioneer of the Justice Reinvestment Initiative discussed in the next chapter, Thompson was growing increasingly frustrated with the inability of groups such as the CSG’s to assuage legacy “tough-on-crime” policies in both conservative and liberal states

(M. Levin, personal interview, August 2, 2016).

After the conference, Levin returned to Austin and pitched Keener on two conceptual items he felt would greatly assist efforts both in Texas and nationwide—“one good idea and one not-so-good idea” (M. Levin, personal interview, August 2, 2016). The not-so-good idea was to create a newspaper or magazine that highlighted and discussed criminal justice reform; this was

66 never pursued. The good idea, however, was to start an organized campaign that would spread a conservative alternative to get-tough policies. In forming the campaign, both Levin and

Keener recognized how difficult it had been to persuade conservatives to adopt criminal justice reform as a conservative policy aim, even though by this point in 2009 several prominent conservative policymakers had pushed piecemeal reforms that resonated with their particular constituency.

In each of these disconnected yet significant reforms, common threads ran through both the policy and the rhetoric surrounding the policy. The interests of public safety, personal responsibility, and increased liberty were all invoked in communicating these policies to their respective states, though no governor or legislator had yet made the leap to tie these tenets into a collective ethos. In this context, Keener then suggested that it would be important to develop a statement of a core conservative criminal justice reform philosophy to which prominent movement conservatives can lend their support. Once created, this core philosophy became the

Right on Crime Statement of Principles.

It was Levin and Keener’s goal to bring prominent conservatives together in endorsing these principles as the primary articulation of conservative values as applied to criminal justice reform. Although the TPPF was well known in the SPN, ALEC, and other conservative circles and while the State of Texas carried a reputation as a “tough-on-crime” state that still reformed its laws, testifying before legislatures as a Texas-based policy scholar tended to alienate conservative elected officials. It seemed imperious to lecture lawmakers on criminal justice reform while working in a state that at the time had the nation’s highest incarceration rate. Thus, the Right on Crime (ROC) campaign was created as a unifying banner not only to show the universality of conservative thought on criminal justice but also to avoid tying the larger reform

67 effort to specific changes in a single state. A first of its kind, ROC exists as a campaign run exclusively by one policy center (the Center for Effective Justice) within the Foundation.

Invented by Levin, the “Right on Crime” name itself was a deliberate pun to highlight both the conservative credentials and the objective correctness of the campaign’s supported reforms (M.

Levin, personal interview, August 2, 2016).

In response, the few well-known conservative criminal justice reform advocates who had been laboring for years with limited success joined the ROC campaign immediately. Prominent

California conservative politician and activist Pat Nolan, who will be discussed in the next section, was one of the initial signatories, bringing with him a career’s worth of like-minded contacts. The former Republican Speaker of the Michigan House of Representatives Craig

DeRoche signed on as well, shortly after formally involving himself as the Director of External

Relations of Prison Fellowship, one of ROC’s conservative partners.

Still, Keener and Levin (and the TPPF writ large) lacked the financial and personnel capacity to fully launch the campaign and seek support from other prominent conservatives.

After months of moderate success applying for and receiving small operating grants, Levin was awarded a sizeable grant from Pew’s PSPP allowing not only for the creation of the Statement of

Principles, but also for a communications firm to be subcontracted and additional personnel to be brought on board. In 2010, ROC hired its first designated employee, policy analyst Vikrant

Reddy. It was Reddy, a former congressional intern and research assistant at the Cato Institute, who did the bulk of the drafting of document.

Drawing heavily upon his own conservative and libertarian values, Reddy sought to create a document that was substantive enough to be meaningful, but avoided delving into policy minutia (M. Levin, personal interview, August 2, 2016). While the Statement of Principles

68 thoroughly outlines the conservative case for criminal justice reform, the true value of the document would be contingent on the notoriety of those who sign on to the statement. This

“identity-vouching” approach was deliberately adopted by Keener from his years of experience in political communications.

TEXAS AND BEYOND

The final version of Reddy’s Statement of Principles articulated the conservative case for criminal justice reform, deliberately drawing heavily from common tropes of the conservative movement such as personal responsibility, liberty, limited government. Elements of fiscal conservatism and redemption are present alongside an acknowledgement of penal harm and the need for rehabilitation. Central to the document is the celebration of the victim, not as a pretense for ever-increasing punitive policies but rather as the crux of restitution and restoration.

“Nixon goes to China:” Right on Crime’s Statement of Principles

Just short of 500 words in length, the Statement reads:

As members of the nation’s conservative movement, we strongly support

constitutionally limited government, transparency, individual liberty, personal

responsibility, and free enterprise. We believe public safety is a core

responsibility of government because the establishment of a well-functioning

criminal justice system enforces order and respect for every person’s right to

property and life, and ensures that liberty does not lead to license.

Conservatives correctly insist that government services be evaluated on whether

they produce the best possible results at the lowest possible cost, but too often this

lens of accountability has not focused as much on public safety policies as other

69 areas of government. As such, corrections spending has expanded to become the second fastest growing area of state budgets—trailing only Medicaid.

Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending. That means demanding more cost-effective approaches that enhance public safety. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders— making them a greater risk to the public than when they entered.

Applying the following conservative principles to criminal justice policy is vital to achieving a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.

As with any government program, the criminal justice system must be transparent and include performance measures that hold it accountable for its results in protecting the public, lowering crime rates, reducing re-offending, collecting victim restitution and conserving taxpayers’ money.

Crime victims, along with the public and taxpayers, are among the key

“consumers” of the criminal justice system; the victim’s conception of justice, public safety, and the offender’s risk for future criminal conduct should be prioritized when determining an appropriate punishment.

The corrections system should emphasize public safety, personal responsibility, work, restitution, community service, and treatment—both in probation and parole, which supervise most offenders, and in prisons.

An ideal criminal justice system works to reform amenable offenders who will

return to society through harnessing the power of families, charities, faith-based

groups, and communities.

Because incentives affect human behavior, policies for both offenders and the

corrections system must align incentives with our goals of public safety, victim

restitution and satisfaction, and cost-effectiveness, thereby moving from a system

that grows when it fails to one that rewards results.

Criminal law should be reserved for conduct that is either blameworthy or

threatens public safety, not wielded to grow government and undermine economic

freedom.

These principles are grounded in time-tested conservative truths—constitutionally

limited government, transparency, individual liberty, personal responsibility, free

enterprise, and the centrality of the family and community. All of these are critical

to addressing today’s criminal justice challenges. It is time to apply these

principles to the task of delivering a better return on taxpayers’ investments in

public safety. Our security, prosperity, and freedom depend on it. (Right on

Crime, 2010)

The idea of having a central document articulating why criminal justice reform is a conservative centerpiece was developed by Levin and Keener. Prior to coordinating Speaker

Craddick’s communication efforts, Keener worked as an Austin-based manager for the global public relations firm Edelman. Being a “brand identity”-focused organization, Edelman’s corporate leadership invested heavily in developing marketing strategies effective in persuading customers to personally connect with their client brands. The piece of market testing that stuck

71 with Keener the most was, when asking consumers generally who they would trust in recommending a product, the primary response was not “a think tank, a doctor, a lawyer…they are more likely to believe ‘a person like me.’” (J. Keener, personal interview, August 8, 2016).

Translated into influencing public policy, the application for changing the hearts and minds of conservative lawmakers was clear: To the conservative lawmakers who were opposed to or undecided and politically cautious, the “person like me” had to be a public figure of unimpeachable conservative credentials. Once a proposition (here, criminal justice reform) was viewed as compatible with one’s identity, the proposition can be discussed (Braman & Kahan,

2006). Known as “identity vouching,” prominent members of an ascribed ideological group taking a position contrary to that group’s orthodoxy provides an opening for group members to consider heterodox positions (Cohen, 2003). With the angst one might feel in question the group’s normative beliefs assuaged, individuals are open to the critical assessment of policy issues.

However, in the case of conservative criminal justice reform, identity vouching is only half of the strategy. Equally as important to politicians than ideological credibility is consistency. It is high political error to be seen as “flip-flopping,” meaning to abandon one’s expressed policy positions or take up one to the contrary. These orientation shifts are common during election cycles as candidates tend to adopt more extreme positions approaching a primary election, where they must demonstrate their fidelity to the party’s central virtues. Should a candidate win a primary, they must moderate their policy position to appeal to general election voters, including those outside of their party and those with different core beliefs. However, in doing so they must be wary of taking a policy position directly conflicting with those they already forwarded (Hummel, 2010).

By articulating how criminal justice reform is fiscally conservative, social restorative, benefiting public safety, all while maintaining a central element of punishment and deterrence, the Statement of Principles allows budget hawks, evangelical Christians, and movement conservatives alike to agree with the case for reform without compromising their political identities. For example, Rick Perry—signatory to the Statement of Principles—has a reputation as a “tough-on-crime” governor, having signed 711 death warrants during his tenure in office

(Death Penalty Information Center, n.d.). Further, he vetoed the first attempt at reform, HB

2193, in 2005. Even when Perry started to adopt a more nuanced understanding of criminal justice, he was anchored by many of the statements he had made in the past. Without further justification, for him to adopt a position that was not outwardly punitive would seem contradictory to his political identity, opening him to allegations of inconsistency and fecklessness.

However, another salient element of Perry’s political identity is one of fairness. As governor, he enacted several policies that brought more parity in school district funding to allow land-poor districts to offer similar amenities as affluent districts. In the latter half of his governorship, he supported policies that offered in-state tuition for undocumented people in an effort to keep college affordable for all. These isolated diversions from conservative orthodoxy are often prodded by his personal religious convictions and deference to the rule of law (Perry,

2010).

The Statement of Principles provides the rationale why criminal justice reform speaks to the values of fairness (“…should be reserved for conduct that is either blameworthy or threatens public safety) and Judeo-Christian redemption (“…An ideal criminal justice system works to reform amenable offenders who will return to society through harnessing the power of families,

73 charities, faith-based groups, and communities), without ascribing these values to one specific policy. This not only allows signatories to the document to vary (in some cases substantially) on any one policy question, it also allows the same values declaration to apply equally in states that have “got it right” and that “still have work to do.” Perry is evidence of the latitude granted under the Statement, culminating in a noteworthy criminal justice reform speech at ALEC in

2016 where the former governor stated that “…when we gave up on trying to win the support of

African-Americans, we lost our moral legitimacy as the party of Lincoln, as the party of equal opportunity for all” (Perry, 2016.)

Exporting Conservative Criminal Justice Reform

Now that the conservative movement had a central document that politicians, luminaries, and other prominent figures could sign on to, it became a matter of finding notable conservatives who were of a similar mindset and willing to be among the first. While TPPF had extensive contacts with the Texas legislature and executive offices, both the restrictions placed on nonprofit activity and a self-imposed rule against recruiting active officeholders limited the value those contacts. However, through his interactions with national policymakers and reform activists, Levin had previously corresponded with Pat Nolan, then the President of Justice

Fellowship, a criminal justice reform group active in Congress.

Similar to Chuck Colson, the founder of Justice Fellowship’s progenitor Prison

Fellowship, Nolan’s position on criminal justice reform only came after having experienced the system firsthand. Pursuant to allegations of corruption in the California legislature, the FBI started a sting operation by creating an ersatz company staffed by undercover agents who were tasked to “work” the legislature (Weiland, 2008). In his role as Minority Leader, Nolan was approached by the agents with a quid pro quo offer to pass legislation favorable to the fake

74 business. Nolan accepted the money as an official campaign donation and divvied it up among various political committees in a standing effort to have more Republicans elected in California.

In 1994, Nolan started his 26-month prison sentence for one count of racketeering (Warren,

2007).

While incarcerated, Nolan was shocked at the deplorable conditions and treatment he received. In office, his stance had been monolithically in support “tough-on-crime” policies, drawing heavily on the victimization he experienced during his youth growing up in Los

Angeles. Nolan’s wife Gail was introduced to Colson at an awards ceremony honoring the assemblyman in absentia, and Mrs. Nolan soon enrolled their children in a Prison Fellowship program for families of prisoners. Upon release, Nolan made it a personal mission to preach to his former colleagues a reform mindset.

From his position in Justice Fellowship, Nolan pushed conservative lawmakers to understand the financial and human costs of the status quo and to increase the quality of life behind bars. Nolan was moderately successful; in 1996 he and his organization were able to kill a measure restricting a prisoner’s ability to sue under the First Amendment. Then a senator from

Missouri, future Bush Administration United States Attorney General John Ashcroft joined forced with Ted Kennedy to oppose the measure on the grounds of religious liberty. Arguably

Nolan’s crowning achievement in federal policy, the Prison Rape Elimination Act of 2003, was forwarded by conservative senator Jeff Sessions of Alabama alongside Senator Kennedy (Keller,

2015). Still, with the vast majority of prisoners in the United States housed at the state level,

Justice Fellowship’s laser focus on federal policy was unable to affect much change in overall population trends and prevailing attitudes in the states.

Nolan was involved in the formation of ROC from the beginning, first as a supporter of the concept, then a partner as Prison Fellowship stood beside TPPF during the campaign’s launch, and ultimately as a signatory himself. In addition to Nolan’s more than two decades’ worth of criminal justice reform experience, his work for Justice Fellowship in Washington, DC had provided him with dense contact list of conservative icons, activists, and luminaries. Nolan set out to work diligently recruiting individuals like of Grover Norquist, John DiIulio, former

Speaker of the House Newt Gingrich, and even Chuck Colson himself to sign the Statement of

Principles. Right on Crime launched in December of 2010.

Other conservative mainstays were added over time, such as Reagan activist and direct mail marketer Richard Viguerie, former Ohio Secretary of State Ken Blackwell, former Virginia

Attorney General and gubernatorial candidate Ken Cuccinelli, and current Arkansas governor

Asa Hutchinson. Two the Republican primary candidates for the 2016 election, Governors Bush and Perry, had signed the document. Unlike Norquist’s Taxpayer Protection Pledge, the

Statement of Principles is an articulation of belief and philosophy, not a biding guide on behavior, making signing the document less politically onerous. This also allowed for the support of all segments of the conservative movement.

CONCLUSION

The creation of Right on Crime, emerging from a one-man policy shop based in Austin to a multistate endeavor supported by some of the most notable names in conservative politics in only six years was due in most part to the work of a handful of individuals, directly or indirectly.

Marc Levin’s work at the TPPF’s Center for Effective Justice brought conservative philosophy to bear on a pressing state issue. Corrections Chairman Jerry Madden’s earnest adoption of the

“don’t build new prisons” mandate from a conservative Speaker of the Texas House allowed

76 permitted conservatives to take politically difficult votes on reform bills. The political communications knowledge of Justin Keener—both inside and outside of the Texas legislature— facilitated the messaging of conservative criminal justice reforms as rightly enhancing public safety and control government costs. Pat Nolan, having spent two decades trying to get federal conservatives to address problems within the criminal justice system, lent his well-developed network of contacts to the effort.

Ultimately, with the support of other stakeholders and activists, it was Levin who came up with the idea of a national campaign for conservative criminal justice reform. This creation was timely and sorely needed, as states like Georgia and Mississippi, and even non-southern red states like Alaska started to request technical support for their own reform packages. The next chapter will discuss how Right on Crime was able to help facilitate reforms in these states.

CHAPTER 4

RIGHT ON CRIME IN ACTION

Since its founding in 2010, Right on Crime has experienced a great deal of growth both in terms of engagement and scope of analysis. What was started in 2005 by Marc

Levin as an analytical, right-leaning approach to sentencing reform today includes eight policy experts conducting research into policing, criminal procedure, juvenile justice, and restorative justice, plus designated communications staff. However, to understand the value that Right on Crime provides to the conservative and criminal justice reform movements separately and collectively, it is imperative to understand how the campaign is constituted and how it is involved in the lawmaking process in target states.

This chapter will cover the organization of Right on Crime and its involvement in states outside of Texas. Four representative states will be discussed, each representing a different engagement model for the campaign: Georgia (first outside-of-Texas success),

Louisiana (first coalitional success), Oklahoma (first success using a State Director), and

Alaska (first time advocating omnibus reforms in a conservative non-Southern state).

Also, Right on Crime’s work with the federal government will be highlighted. The chapter will close with a cursory analysis of states that have enacted reforms.

THE ORGANIZATION OF RIGHT ON CRIME

Prior to the advent of Right on Crime, nearly all policy analysis and communication of best practices were handled by Levin, oftentimes in conjunction with technical assistance from staff with either Pew’s PSPP or the CSG’s Justice Center. With the added demand for powerful messaging on criminal justice reform in red states and the need to coordinate a stable of conservative luminaries from the forthcoming stable of signatories, the Texas Public Policy

Foundation hired Vikrant Reddy as a policy analyst in 2010, a conservative libertarian from Fort

Worth with experience in Washington, DC both in Congress and the Cato Institute (M. Levin, personal interview, August 2, 2016).

In addition to the added research capacity that Reddy brought to the campaign, he also contributed a unique understanding of administrative law. Starting with Levin’s first reform work in 2005, nearly all of the reforms undertaken by TPPF focused solely on sentencing and correctional policy. This approach promised the greatest potential for measurable change, both in terms of reducing incarcerated populations and net expenditures. However, it often did not immediately resonate with conservative principles and, to be accepted, would often require the opportunity for a detailed presentation in order to make the case. Although this initial lag in understanding largely disappeared once notable conservatives began signing on to the Statement of Principles, it was difficult to gain momentum in the early days. Worse, some detractors considered Right on Crime a quisling group of conservatives carrying water for leftist causes.

To assuage these concerns, Reddy began to work on issues of “overcriminalization,” or the overuse of criminal sanctioning. This includes rampant proliferation of law, administrative law passed without notice carrying criminal penalties, inadequate mens rea standards, and the use of the federal jurisdiction to enforce the police power implicitly reserved for the states. In the context of conservative ideology, the thought of an unaccountable, vague, bureaucratic state capable of harming citizens without due oversight was troubling trend. In fact, the first time overcriminalization was entered into legal canon was in the 2015 Supreme Court Case Yates v.

United States in which a fisherman accused of throwing overboard three undersized fish caught in his nets was prosecuted under the document destruction provision included in Sarbanes–Oxley

Act of 2002 (574 U.S. ___), a case that both Levin and Reddy filed an amicus brief in.

Combating the overpowering of the administrative state through the criminal justice system is considered a “red meat” conservative position and demonstrated the campaign’s bona fides.

Levin and Reddy worked in tandem during the launch of Right on Crime in December of

2010 and through the legislative sessions in 2011, including a very successful reform package being passed in Georgia. However, outside of Levin’s success in 2009 via SB 103, conservative criminal justice reform had relatively little experience in juvenile justice reform. Concurrently in

2011, activists in Texas were starting to plan for 2013’s 83rd Legislature, specifically in an effort to eliminate the “school to prison pipeline,” a colloquialism describing who certain juvenile justice policies ease how children can come into contact with the criminal justice system through school. Texas was a prime example, allowing the issuance, enforcement, and arrest for Class C misdemeanors occurring in school, including breaking school’s rules (Muldrow & Cohen, 2015).

Again facing the prospect of being understaffed with only cursory subject matter knowledge of an upcoming criminal policy issue, Levin hired Jeanette “Jenna” Moll, a recent graduate from the

University of Wisconsin with experience in litigating juvenile cases. In addition to addressing the looming reform effort from a conservative perspective, Moll was also tasked with fixing

Texas’s failing network of State Jails.

Moll’s juvenile justice work was mostly successful in 2013, having achieved victories in stopping citations and arrests in schools for Class C misdemeanors found in the Texas Education

Code and mandating that children are not removed from school for similar behavior until a system of graduated sanctions had been employed and failed (Muldrow & Cohen, 2015).

However, her third effort, SB 1234–the elimination of criminal truancy and establishing violations as a civil offense–was vetoed by Governor Perry despite overwhelming support in both chambers of the legislature. Shortly after the 83rd Legislature adjourned, Moll left Right on

Crime to spearhead the PSPP’s juvenile justice efforts in Hawaii and West Virginia. During the

83rd Legislature, the TPPF also hired a Communications Director and Communications Associate dedicated to Right on Crime to handle the campaign’s unique work.

With the successes and profile of Right on Crime and the TPPF’s Center for Effective

Justice growing, Levin sought to capitalize on the hiring process for Moll’s replacement by hiring skillsets not frequently trained into attorneys. Levin eventually hired Derek Cohen, a

Ph.D. candidate from University of Cincinnati’s School of Criminal Justice with extended training in statistics and research methods from the University of Michigan. Cohen inherited

Moll’s juvenile justice portfolio, and additionally started working on more computationally- intensive policy changes such as adjusting Texas’s theft thresholds to their original pre-inflation levels.

Immediately prior to the 84th Legislature in 2015, Reddy’s wife was offered a prestigious clerkship in the Maryland Supreme Court, creating hardship in maintaining two residences and enduring a grueling travel schedule. As a compromise, Reddy was allowed to work remotely from the Washington, DC area. With Levin’s celebrity having grown steadily since 2005, it became increasingly difficult to keep his travel schedule manageable. In the later months of

2014, he was named to Politico’s Top 50, alongside such notable luminaries as Federal Reserve

Chairwoman Janet Yellen, Senators Ted Cruz and Elizabeth Warren, Supreme Court Justices

Samuel Alito and Sonia Sotomayor, and Pope Francis. For Right on Crime’s founder to be recognized for his work not only added to the legitimacy of his campaign but his speaking calendar as well with a legislative session fast approaching, leaving only Cohen in Austin on a regular basis.

Much as the 83rd Legislature was complicated by left-leaning activists seeking radical juvenile justice system changes, the 84th saw a prominent right-leaning activist, Doug Deason, seeking to expand orders of nondisclosure (Texas’s criminal record sealing provisions) to adjudicated cases. While Texas did allow record sealing for non-adjudicated offenses (such as those acquitted or in cases where deferred adjudicated probation was issued), it did not allow for cases resulting in normal probation or incarceration (Glod, Muldrow, & Cohen, 2015). To bolster capacity in Reddy’s absence, Levin hired Maryland attorney and former U.S. Senate

Judiciary Committee staffer Greg Glod. With Glod’s assistance, the code was changed and now nonviolent first-time offenders can now petition for orders of nondisclosure with the passage of

SB 1902.

Despite the legislative victories the TPPF’s criminal justice staff achieved in 2015, the organization hierarchy was unworkable. Levin was beginning to spend more time outside of the state than within with no direct managerial conduit between the policy staff (Cohen and Glod) and the two communications staff members. During the legislative session, Reddy had accepted an offer from the Charles Koch Institute to direct their criminal justice research work. The campaign also had turnover in the communications staff, all while the campaign grew in size and scope. Chuck Devore, Vice President of National Initiatives, began reworking the campaigns org chart into its current form.

Levin remains the Director of Right on Crime, with Cohen having ascended to deputy director, functioning similarly to a chief of staff. He currently works on issues of overincarceration, civil asset forfeiture, public opinion, and system cost. Glod was promoted to senior policy analyst handling overcriminalization and procedural rights, and was put directly in charge of individual state initiatives, as discussed in the following sections. Dianna Muldrow, an

82 intern and research associate with the campaign since prior to the 84th Legislature, was promoted to policy analyst and handles the bulk of the campaign’s juvenile justice and child welfare work.

Cohen also manages the communications staff: director Dan Isett, a ten-year DC veteran with experience at the Parents Television Council, events and communications manager Shannon

Tracy, and staff writer Michael Haugen. Collectively, the communications staff coordinates signatory communications, assists in placing opinion pieces generated by the policy staff, and manages events and social media. Similarly, Cohen manages Joe Luppino-Esposito, Right on

Crime’s Washington, DC policy analyst who focuses on federal legislation and on states down the eastern seaboard. Luppino-Esposito’s work is chronicled below.

As a 501(c)3 nonprofit organization, the Texas Public Policy Foundation is barred from expressing a position on items of legislation without having conducted thorough research and analysis. As a result, the majority of the policy staff’s time is spent on researching the relevant state and federal codes, identifying which provisions or practices are able to be changed to improve public safety, reduce incarceration, and reduce public expenditures. Once a tenable solution is in developed, the analyst then shares the idea with the members of the legislature, the governor’s office, and relevant stakeholders in the state. While this varies by state and engagement style, Right on Crime policy staff members are categorically researchers. Four example states, alongside the campaign’s federal work, are profiled below. discussed.

HOW RIGHT ON CRIME WORKS

Right on Crime’s functional process varies based on the needs of each state it is involved in, ranging from a more communications-intensive style to one mostly focused on policy analysis and alteration. What determines the engagement style is, generally, the appetite of the legislature for reform, the needs of Right on Crime partner groups, the aggregate political leaning of the

83 state, and regionalized and localized high-profile criminal justice issues. This engagement style is highly dynamic, and subject to change regardless of initial intent. Ultimately, the goal of

Right on Crime’s involvement is to take the reforms that were passed in Texas in 2007 to other interested states, with greater success (along with greater room for improvement) being found in red states).

Disseminating Texas’s Take on the Justice Reinvestment Model

The value of Texas’s contribution to criminal justice reform is in equal parts what was done and that it was done. As illustrated in previous chapters, since World War II Texas had become the bellwether state both in terms of doctrinal conservatism as well as mass incarceration. As the avatar of punitive criminal justice policy in the United States, breaking ranks with the incarceration-first ideology of the preceding half-century was the watershed moment. The model of reform Texas implemented—justice reinvestment—had only recently been developed and had not yet experienced the broad application it is seeing today.

Formalized as the Justice Reinvestment Initiative (JRI), this body of reforms was developed by CSG’s Mike Thompson largely in response to complaints from state-level lawmakers. With “tough-on-crime” politics reaching its apex close to the turn of the century,

Thompson routinely heard frustration from politicians of all ideological stripes in the perpetually increasing cost of imprisonment in the face of falling crime rates. The answer he proposed was both publically and privately funded and provided technical assistance. The stubborn reality, he argued, was that accelerating corrections cost will push states to a fiscal cliff who, to avoid catastrophe, will be forced to make indiscriminate and unavoidable cuts. These radical policy shifts will be focused on easing financial pressures rather than increasing public safety, leading to worse long-term outcomes in both (Thompson, n.d.)

JRI was first piloted in Connecticut in 2003. With the small state’s prison capacity well over capacity, it was forced into contracting with the Commonwealth of Virginia to help house the overage in inmates. Thompson and CSG personnel spent a great deal of time evaluating the end-to-end process of Connecticut’s criminal justice system, and offered the legislature recommendations on strengthening community supervision and adjusting sentencing and incarceration policy to make better use of probation and parole. These recommendations were supported by Republican Governor John Rowland and largely codified in 2004. While the

“reinvestment” component was not fully realized (with just a little over $20 million in the realized savings being spent on reinforcing community supervision and treatment), enough pressure was alleviated to allow Connecticut to terminate the contract with Virginia and cut the overall corrections budget by nearly $28 million (Connecticut General Assembly Office of Fiscal

Analysis, 2005).

Flaws aside, the initial application of JRI was seen as a success. However, a blue state obviating the need for increased spending on an inefficient system would not be highly regarded in a red state, especially when the central punitive orthodoxy is challenged. Thompson was even able to persuade then-President George W. Bush’s Department of Justice to budget for a grant program that would fund JRI-style assistance in the states. Still, there was not much interest from the state legislatures to enact these reforms outside of dire fiscal conditions.

Concurrent to the Connecticut success and development of federal funding streams, the

Pew Charitable Trusts had begun evaluating entering into the justice reform policy space. As a nonpartisan nonprofit focused on improving public policy, Pew was interested in applying its generous endowment (over $5.3 billion in 2015) towards criminal justice reform (Pew Charitable

Trusts, 2015a). Pew’s PSPP, as discussed in Chapter 3, began offering grants from its holdings

85 to organizations engaged in this space, such as CSG. Prior to Pew’s beneficence, CSG’s JRI work was funded in large part by George Soros’s Open Societies Foundation, a relationship that would not be well-received by conservatives. With nonpartisan money supporting the initiative,

Pew and CSG began developing an ideal model that reinvestment reforms would accomplish.

The established goals of JRI were twofold: to reduce spending on corrections and increase public safety, and to reinvest those savings in strategies that can decrease crime and strengthen neighborhoods (Bureau of Justice Assistance, n.d.). In order to accomplish these goals, assistance providers would first seek agreement from the leaders of all branches of a state’s government, most often the governor, lieutenant governor (or president of the senate), speaker of the house, and the presiding judge over the state’s high court. This agreement signals to those providing the technical assistance the collective desire to reform the state’s laws pursuant to JRI’s goals. This agreement has the secondary function of granting access to relevant justice and expenditure data to those providing the technical assistance.

Once the agreement is formalized, the technical assistance providers begin making site visits to relevant facilities and filing data requests stretching back as far as 10 years. From this information, analysts identify which policies (or lack of policies) directly drive large parts of the state’s incarcerated population. For example, if a state has very strict terms of probation that lead to high revocation rates for low-risk, nonviolent probationers, the statute is targeted for reform. The analysts will also evaluate funding data to identify if the state’s current fiscal practices incentivize revocation of low-risk, nonviolent probationers. These proposed policy options are then presented to state leadership in advance of a pending legislative session.

This is where JRI becomes equal parts politics and policy. With the policy options in the hands of motivated legislators, it is incumbent upon them to steward them through to final

86 enrollment. Ideally, since the governor has already signaled the desire to enact the reforms, there is rarely difficulty after the bill or bills clear the legislature. However, passage through the legislature is rarely uncontested, oftentimes with a bipartisan coalition of legislators echoing

“tough-on-crime” sentiments. This is frequently a political gambit versus a politically-agnostic assessment of the policy’s merits, but this action still can imperil the coherence of omnibus criminal justice reform legislation.

It is at this point that groups such as Right on Crime add great value to the JRI process.

Intimately familiar with criminal justice policy and the political nuance of reform in a red state, personnel are often invited to testify before the legislature’s relevant committees and field questions on the technical merits of the reform and what was experienced in Texas when similar reforms were passed. Right on Crime’s specific involvements in JRI states will be discussed later in this chapter.

Once the governor signs the legislation into law, technical assistance providers help practitioners implement the new policies. This support includes creating technical documents explaining how the new policy works, what to expect, and how to handle conflicts with existing practices. Further, JRI personnel will work with the state’s budgetary authorities, ensuring the savings realized from the change in policy are correctly channeled back into proven crime and recidivism reducing initiatives, further lessening the strain placed upon the state’s criminal justice system over time. After the legislation has had time to take effect, the technical assistance providers will reevaluate key performance measures to ensure the law is producing the intended result, and if not recommending corrections. If the law is functioning appropriately, the assistance providers may seek participation in a second round of reforms.

With core tenets of JRI established, Pew and CSG were able to beginning rolling the engagement model out to interested states. The “freshman class” of JRI reforms was in 2007, featuring Texas, Kansas, and Nevada, with engagement in the states starting in mid-2005. With

Governor Perry having just vetoed HB 2193 at the end of the 79th Legislature, Texas stakeholders (TPPF included) relied on technical assessments of prison populations by CSG personnel to help reconcile the criticisms in his veto message with policy that still produced the desired outcomes. Being unable to achieve the desired buy-in from state leaders, both CSG and

Pew were reticent to commit resources for more than cursory analysis. Still, as discussed in

Chapter 3, the technical review of Texas’s criminal justice system as support for reform was satisfactory for enough legislators to pass HB 1678 during the 80th Legislature, culminating in

Governor Perry’s signature.

Of the three inaugural JRI states, Texas’s reforms were arguably the most moderate.

Kansas expanded release credits, authorized performance-based funding, and instituted evidence- based interventions like specialty courts and cognitive-behavioral therapy programing. Nevada went further, establishing presumptive parole, instituting graduated sanctions, and requiring evidence-based practices, in addition to the sentence credit and interventions expansion (Pew

Charitable Trusts, 2015b). Of these reforms, Texas only implemented graduated sanctions for community supervision violations and expanded interventions.

Still, the very fact that the deep-red state of Texas was able to steward criminal justice reform through to implementation signaled that the monolithic “tough-on-crime” approach to criminal justice policy was in its final days. Following the successes in 2007, Pew and CSG continued JRI work mostly in blue states, though still calling upon Levin’s expertise in analysis and testimony. The organizations continued engaging states separately through 2010, when the

Bureau of Justice Assistance formalized its relationship with Pew, designating the organization as the chief partner in JRI (Bureau of Justice Assistance, n.d.).

Georgia

The first red state to enact comprehensive criminal justice reform outside of Texas was

Georgia. Unlike monolithically conservative states such as Mississippi and Alabama, Georgia is among the most centrist states in the old Solid South. Despite its relative liberalism comparted to its neighbors, Georgian conservatives still hold an aggregate 20.2 percent conservative advantage over the state’s liberals (Gallup, 2016). More importantly, this ideological distribution closely mirrors that of Texas.

However, one dubious distinction the Peach State had over other states in the nation was the amount of Georgians that were under criminal supervision; including probation, incarceration, parole, or any other form of criminal sanction. In 2007—at the peak of Texas’s prison capacity crisis—Georgia had no fewer than 1 in every 13 of its citizens under correctional control. In contrast, Texas had 1 in 22, the third-highest control rate in the nation. While

Georgia was fourth nationally behind the District of Columbia, Louisiana, and Mississippi in terms of incarceration rate, it led the nation in community supervision rate with 6.5 percent of adults, or 1 in 15, being supervised by the state (Pew Charitable Trusts, 2009).

Although “tough-on-crime” rhetoric paid political dividends nationwide and in Texas, the bipartisan nature of the push for longer sentences was keenly felt in Georgia. In step with the national groundswell that drove the Violent Crime Control and Law Enforcement Act to federal passage, Democrat Governor Zell Miller championed a legislative agenda for a set of crimes known as the “seven deadly sins” in the 1994 legislative session. Colloquially known as “Two

Strikes and You’re Out,” this legislation established a minimum sentence of 10 years without

89 parole for murder, manslaughter, aggravated sodomy, rape, aggravated sexual assault, aggravated molestation, and armed robbery, with the offender being sentenced to life without parole on the second occurrence. The “seven deadly sins” were extended to juveniles as well, requiring that any youth charged with one of the seven offenses be tried as an adult through SB

440 (Crane, 2012). Similar to the rest of the United States, Georgia’s crime rate had declined steadily from 1994 to 2011. However, due in large part to the “tough-on-crime”-style sentencing laws, Georgia’s incarceration rate rose 22 percent over the same period, even in the face of release rates going up over 10 percent in tandem (Bureau of Justice Statistics, n.d.).

The genesis of the Georgia reforms is not unlike the context of Texas reforms: an impending fiscal calamity unable to be avoided due to a sclerotic and inefficient criminal justice system, one interrupted by champions both inside and outside of state government. In Georgia, the reform was driven by Governor Nathan Deal.

Long before his gubernatorial election, Nathan Deal was no stranger to the criminal justice system. Serving in the U.S. Army’s Judge Advocate General Corps, he taught law to military policemen and, following the assassination of Martin Luther King, Jr., educated guardsmen on their role when deployed domestically. Prior to his seeking election, he also held offices as a prosecutor, a district judge, and a county attorney (Henry & McCaffrey, 2010).

Running as a Democrat in 1980, Deal was elected to the Georgia State Senate, serving 12 years prior to his election to the U.S. House of Representatives. While Deal was conservative even by the standards set by Southern Democrats during that period, his voting record was relatively moderate. In 1995, he joined the Republican Party after the “Gingrich revolution.” Following

President Clinton’s impeachment proceedings (Deal voted for all four articles), his politics

90 moved far further to the right (American Conservative Union, 1993; 2009). Nathan Deal assumed executive office on January 11, 2011.

With Georgia struggling to house its burgeoning prison population Adam Gelb, Director of Pew’s PSPP and former Executive Director of the Georgia Sentencing Commission, deployed his team to begin gathering justice-related data in anticipation of the looming legislative session.

However, Gelb’s contacts within the Georgia state government tended to be members of the apolitical bureaucracy. While these relationships are valuable in retrieving the data necessary to create legislation to fix the capacity problem, they are wholly unable to provide lawmakers with the conservative rationale for making the reforms. Further, this effort is in the shadow of decades of “tough-on-crime” rhetoric and policy that had not yet been successfully undermined.

To open the door for ideologically informed conservative support for criminal justice reform, Gelb reached out to his contacts at the fledgling Right on Crime campaign. Even though former Speaker of the U.S. House of Representatives and staple of Georgia politics Newt

Gingrich had recently joined the campaign, the team was at a loss on how to begin gathering support for criminal justice reform inside the capitol. Fortunately, in 2009 TPPF’s sister SPN group Georgia Public Policy Foundation’s (GPPF) Executive Director Kelly McCutchen had attended a panel in Washington, DC that featured Levin, Madden, and Right on Crime Signatory and Attorney General in the Regan Administration Ed Meese and that evangelized conservative criminal justice reform. Seeing the conservative credentials lined up behind the campaign,

McCutchen read up on the philosophical underpinning of the campaign and quickly became a supporter.

Gelb, Levin, and McCutchen huddled in mid-2010 to discuss how to evangelize the developing “conservative gospel” of criminal justice reform with a reticent legislature. In

December of 2010, shortly after the launch of Right on Crime as a formal initiative, GPPF—a statewide conservative mainstay in its own right—hosted a large legislative gathering highlighting criminal justice reform. Gelb moderated a panel featuring Levin and Madden, both highlighting the successes experienced in Texas. Gelb had also enlisted the support of

Thompson’s JRI team at CSG to supplement the data gathering and policy formation work.

Legislatively, Georgia’s “Madden and Whitmire” were two Republican members of the

House, Jay Neal and Rich Golick. Neal, a pastor, was brought to the issue after witnessing several drug-addicted members of his congregation turn their lives around and was a vocal champion of criminal justice reform. Conversely, Golik’s first draft of the legislation sought to in net increase punitive sanctions for low-level offenders than reduce sentences. With the

Governor’s Office encouraging the filling of a wholly separate justice reform bill in response,

Golick eventually sided with Neal and the recommendations of the technical assistance personnel. In the Senate the bill was sponsored by Republican Bill Hamrick, who left the legislature in 2012 to be appointed to the Superior Court of Georgia.

The final product, HB 1176, was an ambitious piece of legislation, objectively addressing more trouble areas in criminal justice policy than did the Texas reforms of 2007. To address the problem of squandering limited prison space on low-level offenders, the bill created graduated sanctions for burglary, forgery, and theft, while revising simple drug possession penalties. To address recidivism, the bill authorized electronic monitoring, implemented graduated sanctions for probation violations, and pushed the state’s criminal justice system toward employing evidence-based practices. HB 1176 mandated better data collection and analysis procedures, while reinvesting savings in accountability courts and substance abuse treatment (Georgia

General Assembly, 2011). In sum, HB 1176 is expected to have saved $264 million in net though FY 2018 (Pew Charitable Trusts, 2012).

With a powerful piece of legislation filed that supported conservatives’ views on criminal justice reform, Right on Crime mobilized from Austin. Working closely with Speaker Gingrich, campaign personnel provided the statistics and technical review for a supportive op-ed article.

GPPF assisted Right on Crime in creating a Georgia-specific version of the Statement of

Principles, signed by conservatives well-known in the Peach State who also took conservative talking points to their elected officials. Prison Fellowship also provided assistance, mobilizing their network of prison ministry volunteers to lobby their legislators in favor of HB 1176. The lynchpin of the concerted effort was, “If Texas did this, surely Georgia could as well.”

While not without legislative controversy—HB 1176 failed on 2nd Reading in the Senate, requiring amendments before final passage—the bill made its way largely intact to Governor

Deal’s desk. During the signing ceremony, Deal referenced how the use of alternative courts will both save money and help keep families together, communicating a rationale similar to that put forth in the campaign’s national Statement of Principles. For the first formal engagement outside of Texas for Right on Crime, Levin and Reddy could not have hoped for better.

Louisiana

While the Georgia reform effort was getting under way, 2011 also marked a session year for the Texas. With Chairman Madden’s waning influence and the shared fatigue of two consecutive sessions of systemic criminal justice reform, Texas lawmakers were hesitant to expend additional political capital on an issue they assumed was righted. While TPPF’s criminal justice reform efforts were somewhat stymied relative to other session years, two sweeping pieces of legislation were passed.

Authored by Republican State Senator John Carona and sponsored by Madden and White in the House, SB 1055 created a funding framework whereby counties (and their subordinate

CSCD) could receive incentive funding grants for establishing and improving upon certain correctional population benchmarks. In short, counties were incentivized not to remand low- level offenders and technical violators to state custody and instead to use their state-level population allotments only for their more serious offenders. In HB 1205, incarcerated offenders were given the opportunity to earn “good time” credit—time deducted from their prison sentence—for completing rehabilitation or vocational programming, satisfying the terms of a restitution order, earning a high school degree, or several other positive behaviors. Most notably, as the 2007 reforms had halted and reversed the growing incarceration rate, the legislature was able to authorize its first prison closure: the Central Unit in Sugar Land, Texas (Glod, 2015).

Buoyed by these notable successes and with the Georgia reforms in progress, Levin and Reddy looked outside of Texas for additional opportunities.

The Texas-based staff of Right on Crime did not have to look much farther than the state’s eastern neighbor, Louisiana. In 2011, Louisiana was incarcerating 868 people for every

100,000 residents, over twice the national average. This number was up 95 percent from the state’s incarceration rate of 446 per 100,000 in 1990, approaching the pinnacle of “tough-on- crime” sentencing policy. Correctional spending followed suit, increasing 71 percent over the same period to $757.4 million in 2011 (Galik & Morris, 2013).

Perhaps more than any other state, Louisiana embraced the punitive appeal of determinate sentencing laws. In the early 1970s, Louisiana’s state legislature enacted mandatory minimum sentences similar to those of Rockefeller, mandating a four-year hard-labor minimum sentence for those caught in possession of a Schedule I substance (e.g., marijuana or heroin).

Similarly, legislation was passed mandating that an offender who engaged in any part of the cultivation or distribution of marijuana be sentenced for at least five years of hard labor and assessed a fine up to $50,000 (Louisiana State Legislature, n.d.). Only one instance of reform—a slight reduction in mandatory minimums for drug offenses in 2001—predate a conservative reform agenda in the state.

In addition to punitive preference of the Louisiana legislature, the state was facing an unprecedented $1.6 billion dollar revised deficit in the 2010-2011 budget, forcing the legislature to consider drastic action. While legislators managed to address this shortfall through sweeping spending cuts and a one-time disbursement from the state’s Budget Stabilization Fund

(commonly referred to as the “rainy day” fund, a budgetary set-aside in times of surplus revenues), several conservative priorities were delayed or prevented (Moller, 2012).

One policy priority that fell in the early salvos of Louisiana’s 2011 budget battle was a proposed statewide expansion of charter schools that flourished in New Orleans following

Hurricane Katrina. This school choice initiative was spearheaded by Kevin Kane, founder and immediate past president of the Pelican Institute. A sister SPN organization to the TPPF, Pelican was created by Kane in 2007 and focused on bringing center-right, free-market reforms to the state, specifically in New Orleans and Orleans Parish (Persica, 2016). Frustrated with his state’s dubious honor as the world’s top incarcerator, the budgetary priority placed on supporting rote punitive corrections policy, and with the collateral consequences stemming from Louisiana’s criminal policies, Kane reached out to Levin.

Familiar with each other’s work through SPN, Kane and Levin turned their focus on the state’s dysfunctional criminal justice system. On February 3, 2011, Right on Crime launched its

Louisiana initiative via a well-attended conference call led by Levin, Kane, and Pat Nolan (Right

95 on Crime, 2011). Similar to Right on Crime’s effort in Georgia, Texas-based staff would provide research and communications support to the Pelican Institute, while Kevin would be responsible for hosting educational events, discussing reforms with legislators, and creating coalitions to broaden the appeal of the reform. Kane hit the ground running and then proceeded to produce four successful yearly legislative sessions focusing on correctional reform. The

Pelican Institute’s inaugural foray into criminal justice reform during the 2012 session was a success, with Louisiana passing three notable items of legislation advocated by Kane.

First, HB 1068 permitted judges to waive the application of mandatory minimum sentences for certain nonviolent offenders. Should a prosecutor accept a plea to a lesser offence or all three courtroom parties enter into a post-conviction agreement, a judge can issue a sentence lower than the minimum for minor drug charges. While this disproportionately concentrates bargaining power in the hands of the prosecutor, the bill provided a mechanism for diverting from the rigid mandates of determinate sentencing. Second, HB 1026 allowed for nonviolent offenders to apply for parole earlier when serving two sequential felony imprisonment terms, provided that the second felony does not carry a mandatory sentence. Third, HB 543 allowed those sentenced to life without parole for nonviolent offenses to become parole eligible after a designated period of time, depending on the offender’s age during the crime and the amount of time served should they complete several requirements (such as reentry and job skills programing) before being released (Galik & Morris, 2013). While these reforms represented a broad philosophical change in Louisiana’s criminal justice policy, this package was not estimated to produce an immediate, meaningful reduction in incarceration due to limited scope and little retroactivity.

Louisiana’s 2013 session brought about more ambitious Pelican-supported legislation.

Most notably, HB 442 allowed eligible offenders to be diverted from a prison sanction if they are addicted to a controlled substance, will likely benefit from rehabilitation, do not pose a threat to the community, and the prosecutor agrees with the diversion. This “safety valve” legislation is estimated to save the state of Louisiana $22 million through five years after passage. Similarly,

HB 59 increased the number of time credits that an inmate could earn through the completion of a high school degree, job training, or rehabilitative programming. By expanding the application of these credits, it is estimated that Louisiana would save nearly $5,000 per offender housed in a state facility and $2,417 for each housed in a Parish jail (Galik & Morris, 2013, p. 16).

Although Right on Crime’s involvement was somewhat limited in 2013 due to overlapping Texas and Louisiana sessions, the Texas-based campaign took advantage of the period between sessions by focusing heavily on the 2014 legislative session in Louisiana.

During 2013, Chairman Madden officially joined Right on Crime as a Senior Fellow after departing the legislature. With Madden and Cohen both joining the campaign and a renewed emphasis on the Bayou State, Right on Crime and Pelican prepared the most ambitious slate of reform legislation attempted in the state. Kane and Right on Crime also partnered with New

Orleans real estate developer Pres Kabacoff to establish the Louisiana Smart on Crime Coalition

(LaSOC), a bipartisan group comprised of business leaders, reentry professionals, and activists from across the ideological spectrum. Additionally, the Coalition retained professional lobby representation though the Southern Strategy Group.

Animated as much by the resulting shortfall in employable Louisianans as by the burgeoning cost of the criminal justice system, the business community sought to remove barriers to gainful employment post-conviction. To allow more ex-offenders to earn gainful

97 employment, LaSOC championed HB 911, a bill allowing provisional occupational licenses to be issued to certain otherwise-qualified ex-offenders. Modeled after similar legislation that the

TPPF passed in Texas in the 2013 legislative session, the bill was ultimately passed as HB 1273.

However, SB 339—an indemnification of employers who employ certain ex-offenders and modeled after Texas’s HB 1188 from the 83rd Legislature—failed to pass from committee.

LaSOC also managed to advance several key sentencing bills aimed at lowering the state’s prison population. SB 532 permitted state courts to create rehabilitative veteran’s courts that, in conjunction with the legislation of the two previous sessions, allowed offenders with a military history to avoid many mandatory minimums for drug sentences. SB 383 created a sentencing

“cleansing period,” where a second offense of a sequential sentence would not be counted if more than 10 years has passed since the maximum possible sentence of the previous offense.

HB 210 streamlined and expanded medical parole, allowing the states to discharge infirm or dying prisoners.

The year 2014 also contained several legislative defeats for the Coalition. HB 914 mirrored Texas’s SB 1055 of the 82nd Legislature discussed above, providing incentive-based funding for community corrections. HB 329 would have allowed for older nonviolent offenders to petition for parole if they could demonstrate rehabilitation and had a clean disciplinary record.

SB 323 would have done away with the enhancement of a second and subsequent simple possession marijuana conviction to a felony, while HB 745 would have expanded the “safety valve” provision established during the previous legislative session. These items of legislation all failed to advance from the assigned committees.

Despite the legislation that was held up or killed in the legislature, Governor Jindal affixed his signature to each piece of criminal justice reform reaching his desk. While the

98 legislation signed into law was expansive in its own right, the penetration of Right on Crime represented a philosophical sea change in a state ostensibly more conservative than both Texas and Georgia (Gallup, 2016). LaSOC’s efforts culminated in 2015, where the Coalition advocated for HCR 82, formally creating the Justice Reinvestment Task Force and initiating the

JRI process in Louisiana with Pew’s PSPP as the lead partner. While the JRI personnel started collecting the necessary system data in early 2016, LaSOC produced another banner session expanding civil indemnity, expungement, and several pilot programs in anticipation of 2017’s omnibus reinvestment legislation (Mire, 2016).

Sadly, Kevin Kane passed away on the evening of October 27, 2016 after a prolonged battle with gastrointestinal cancer. His obituary appearing in the National Review, a national conservative magazine started by modern movement founder William F. Buckley, Jr., extolled

Kane’s work on conservative and libertarian policies, calling criminal justice reform his

“crowning achievement” (Hillyer & Murdock, 2016).

Oklahoma

While states like Louisiana represent the typical slow progress experienced as politicians gradually cast off the vestige of “tough-on-crime” thinking, not all states have shown linear improvement. For example, Oklahoma’s path to Right on Crime-style criminal justice reform operated more in fits and starts, featuring arguably what was the first failure of the JRI process.

Although the ship has since been righted, this first failure demonstrates that even in monolithically conservative states with party leadership on board, criminal justice reform is hardly a fait accompli.

Similar to its neighbor Texas, Oklahoma’s penal policies toughened significantly during the “tough-on-crime” era. Most relevantly, legislators in 2000 adopted a truth-in-sentencing “85

99 percent” law, a mandate that certain offenders must serve no less than 85 percent of the entirety of the sentence before being eligible for parole consideration. This stipulate brought the state into compliance with the Violent Crime Control and Law Enforcement Act of 1994. Originally covering only 11 of the most heinous crimes, the Oklahoma Legislature revisited the statute, adding 10 more applicable crimes, with further additions being made in 2007 and 2011. By

2012, 25 criminal acts were subject to the state’s “85 percent” law (Council of State

Governments, 2012a).

This strict sentencing provision, coupled with the state’s slowly waning violent crime rate, led to a steadily increasing prison population. From 2000 to 2011, the state’s prison population grew 17 percent, which was nearly twice the rate of growth experienced by

Oklahoma’s general population. While the state mirrored the rest of the country with a generally declining violent crime rate, the percentage of detained violent criminals subject to the “85 percent” law increased dramatically (Federal Bureau of Investigation, 2016). From 2005 (five years after initial passage) through 2010, the percentage of incarcerated prisoners subject to the law’s parole requirements nearly doubled from 10 percent to 19 percent (Council of State

Governments, 2012a). As with the earlier JRI states, these immutable population increases began to drain needed resources from competing public interests, with prison spending increasing 30 percent from 2000 to 2010 (Council of State Governments, 2012a).

Spurred into action by these fiscal difficulties, state leaders sought to undertake reforms similar to those enacted by Texas in 2007 and reached out to Pew’s PSPP. Seeing the value in reforming another solidly “red” state’s criminal justice system, Pew’s project leadership arranged to have their partner organization CSG to begin providing technical assistance. The then-

Speaker of the House Republican Kris Steele was identified as the most capable champion for

100 the legislation, having passed similar legislation and having shown deference to reform measure in the past. Steele set to work on crafting the legislation and marshalling a task for to gather legislative consensus on the initiative.

The final product of the JRI work was HB 3052, filed by Steele in the House and sponsored by Republican President Pro Tempore Brian Bingman in the Senate. An ambitious piece of legislation, HB 3052 initially sought to emulate reforms more akin to the Georgia model than those of Texas. Of the more notable inclusions, the bill would have expanded post- conviction judicial review, strengthened the use of intermediate sanction facilities for technical revocations, established a graduated sanctions framework for drug offenses, and implemented several proven recidivism reduction programs (Oklahoma Legislature, 2012).

Similar to the Georgia legislation, HB 3052 was not without controversy and its fair share of detractors. However, unlike in the Peach State where a governor was content to use the bully pulpit to advance reform legislation, Governor Mary Fallin was more concerned with the liberal airs of the legislation which compounded intraparty difficulties between her and the Speaker. As a result, HB 3052 was stripped of several key provisions while in the Senate, arriving on

Governor Fallin’s desk as a far more tepid reform package. Rather than reversing the growth of

Oklahoma’s prison population, the legislation was now estimated to slow prison growth by 6 percent. Still, the reforms passed in 2012 were estimated to save the state $120 million in correctional spending (Council of State Governments, 2012b).

During the travails of HB 3052, Right on Crime was only cursorily engaged in

Oklahoma. While the friendly (and sometimes unfriendly) rivalry between the Texas and its northern neighbor played a small part, a critical commonality between the states presented a problem: simply put, Oklahomans do not like outsiders telling them what to do (J. Madden,

101 phone interview, August 8, 2016). This dynamic initially hobbled the ability of CSG to make inroads to stakeholders, and it increased commensurately with the trouble between Steele and

Fallin. Right on Crime contributed some conservative support by arranging Madden—having signed on to the Statement of Principles after leaving office—to evangelize conservative criminal justice reform before a group of legislators, though it was seemingly not sufficient to diffuse nuanced problems specific to the state (McGuigan, 2012). The inability to engage at the ground level in a neighboring state bothered Levin (M. Levin, personal interview, August 2, 2016).

Formally, Right on Crime leadership had no specific plans for Oklahoma post-2012. With the

2013 Legislative Session (to say nothing of the three special sessions called in Texas in 2013) monopolizing Right on Crime’s workload, nothing of substance was able to be accomplished in

Oklahoma until 2016.

Unbeknownst to his colleagues, Levin had not disengaged from Oklahoma following the passage of HB 3052. To combat the entrenched resistance to “outsiders” looking to change state law, Levin conceptualized a colonial model of criminal justice reform where the national influence of the Right on Crime could be brought to bear in state capitals by residents of the state. In short, that Right on Crime’s Oklahoma efforts would be driven by an Oklahoman.

While this individual would still report to campaign leadership in Austin, they would be based out of the state’s SPN group and privy to their influence and networks.

Levin also started building support structures specific to Oklahoma. J. C. Watts, a former

Republican Congressman of unimpeachable conservative bona fides and longtime supporter of criminal justice reform, signed on to the Statement of Principles in late 2013. Speaker of the

House Kris Steele, having stepped down from his post, signed on in early 2014. Shortly thereafter, both began producing Oklahoma-specific content promoting further reforms (e.g.:

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Right on Crime, 2013). Levin also fostered a productive working relationship with Oklahoma

State Rep. Lisa Billy, a reform-minded Republican and newly appointed chairwoman of ALEC’s

Criminal Justice Reform Task Force and Rep. Pam Peterson, chair of the State House Public

Safety Committee. Most effectively, Levin was able to secure a supportive grant from the

George C. Kaiser Foundation, an Oklahoma nonprofit that helped with the JRI efforts in 2012, allowing Right on Crime to hire its first state director.

After an exhaustive recruitment process, Levin, Reddy, and Cohen made the decision to hire Adam Luck in early April 2015. Having served five years in the United States Air Force as a cryptologic linguist, Luck used his veteran’s benefits to earn his bachelor’s degree from

Embry-Riddle Aeronautical University. After separating from the service, he began his master’s degree in public policy from the John F. Kennedy School of Government at Harvard University.

While studying at Harvard, he was nominated for and was awarded a prestigious Michael S.

Dukakis Governors’ Summer Fellowship, a program that tasks top-level graduate students to spend three months focusing on a critical matter of public policy as an advisor to a state’s governor. Fortuitously for Right on Crime, Luck spent his fellowship working on the JRI effort in 2012 for Governor Fallin and focused on the issue in his master’s thesis (Weintz, 2016).

Luck’s integration into Right on Crime and his reintegration into Oklahoma policy started in earnest as efforts began for the 2016 Oklahoma Legislative Session. With Steele remaining active in state policy and politics, he was able to bring Luck up-to-speed on current criminal justice reform efforts in the state, including the nascent development of the two state ballot initiatives discussed below. Steele and Fallin had since put aside the initial squabbles that imperiled HB 3052, with the two working closely as the governor sought to reinvigorate criminal justice reform efforts. Both Steele and Luck were active participants in Fallin’s criminal justice-

103 related committee and subcommittees, the entities tasked with making reform recommendations to the legislature.

As the summer of 2015 progressed, Luck was increasingly relied upon to deliver the reports of Fallin’s Reentry Subcommittee to the governor herself. In practice, he quickly became the de facto subcommittee chair, culminating in being tasked with delivering the governor’s entire criminal justice reform agenda to the relevant legislative committees. Notably, Fallin’s ambitious multi-item agenda closely resembled the initial form of HB 3052 and looked favored to progress in light of Luck’s increasing stature within the capital. As the Oklahoma Legislative

Session began in January of 2016, Fallin appointed Luck to the Oklahoma Board of Corrections

(Deaton, 2016).

The second coming of conservative criminal justice reform in Oklahoma navigated to passage with ease. Comprised of four bills, the governor’s agenda encountered only token resistance in each house of the legislature. HB 1518, a “safety valve” modeled after Louisiana’s

HB 442 and similar ALEC model legislation, allowed judges to issue sentences below mandatory minimums in the interest of justice and supposing the defendant is not a public safety risk. Right on Crime’s Texas work was modeled in HB 2168 and 2169, mitigating employment-related collateral consequences and indemnifying employers who hiring ex-offenders, respectively. HB

1574 perhaps represented the largest ideological shift, effectively altering Oklahoma’s “three- strikes” law for drug offenses from a mandatory minimum sentence of life without parole to a mandatory minimum of 20 years’ imprisonment. Promptly upon reaching her desk, Governor

Fallin signed the legislation into law (Green, 2016).

With the rousing success Oklahoma experienced in early 2016, Luck and Steele pressed forward. Steele’s coalition, Oklahomans for Criminal Justice Reform, succeeded in placing two

104 powerful referenda on the November 2016 ballot: State Questions 780 and 781, a two pronged direct democracy iteration of JRI. SQ 780 sought to reclassify low-level felony drug and property offenders as high-level misdemeanants, allowing greater flexibility in sentencing. SQ

781 mandated that the state remit savings from the reclassification to local governments to bolster treatment in rehabilitation options. On November 8th, the state that voted 65 percent for law-and-order presidential candidate Donald Trump passed the questions by an average of 57 percent (Oklahoma State Election Board, 2016).

Alaska

Right on Crime’s experience in Oklahoma has illustrated a critical point about criminal justice reform: Even in light of general conservative acceptance and single party control of a state, conservative criminal justice reform is far from assured. Intraparty disputes, vestigial talking points, and who can claim credit can all lead to difficulties in the passage of reform legislation. Alaska highlighted similar difficulties, specifically in that one concentrated pocket of opposition can threaten to derail even meticulously planned reform. The state also managed to produce—for the first time during the period examined by this work—an example of how a

“tough-on-crime” campaign attack advertisement resulted in a candidate’s defeat.

Although the largest of the 50 states in terms of area, Alaska is ranked 48th in population.

Its vast, relatively uninhabitable expanse has led to residents clustering in the more accessible southern regions of the state. In fact, nearly half of all Alaskans are concentrated in the area between the Kenai Peninsula and Fairbanks. The largest population center in this area is the

Anchorage metropolitan statistical area, home to over 40 percent of the state’s residents— making it the de facto epicenter of state politics, despite Juneau being the designated capital.

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Similar to how Illinois policy is driven nearly unilaterally by Chicago and New York by

New York City, metropolitan Anchorage politicians are disproportionately powerful within the

Alaska state legislature. However, unlike in the aforementioned states, the major population centers in Alaska are far more conservative. In fact, self-identified conservatives in Alaska enjoy a 19.3 percent advantage over self-identified liberals, only 0.5 percent below that of Texas. This political preference is even more pronounced in partisan politics, where Republicans enjoy the fifth-highest party advantage in the United states at 17.2 percent, .01 percent below Alabama

(Gallup, 2016).

Similar to the state’s overall population, the correctional population is far lower than that found in other states in which Right on Crime has been involved. This dynamic presents policy analysts with two unique considerations. First, even a relatively small shift in correctional trends could drastically affect the incarcerated population. And second, a change in the incarcerated population—positively or negatively—could lead to pronounced costs or savings far more quickly than in other states with larger and more numerous facilities. Further, criminal justice in

Alaska is wholly the province of the state government, save for local law enforcement.

Alaska’s institutional population had been steadily increasing an average 2.6 percent year-over-year from 2000 to 2012 (Bureau of Justice Statistics, n.d.). Of those released from

Alaskan facilities, roughly 2 in 3 would recidivate within three years. Compounding matters, the state experienced several years (2004-2006, 2009) where the incarnated population grew by 5.4 percent or more, leaving the state with little time to adjust policy, despite the legislature holding short annual sessions. In turn, these consideration led to a looming capacity problem similar to those seen in other states.

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In the summer 2013, a handful of members in the Alaska State Legislature and the Alaska

Department of Law—the state’s prosecutorial arm—reached out directly to Right on Crime and

Pew PSPP personnel to seek assistance. With the 2014 legislative session quickly approaching in January, neither organization had the ability to request and analyze the data necessary for a full reinvestment plan, nor had the legislature convened all necessary stakeholders to make the process a success. In spite of the limited timeline, both organizations worked with lawmakers to ensure that some progress was made and that the groundwork was laid for JRI in the future.

The resulting legislation was SB 64, carried by Republican Senator John Coghill of

Fairbanks. Right on Crime again provided support performing data analysis, penning op-eds, and sending Madden to testify in support of the legislation. The bill was generally well-received by the Republican legislature. After several friendly amendments attached in the House, the bill was sent to Governor Walker without a single “nay.”

The legislation did manage to include a notable amount of reforms, including establishing a volunteer sentencing commission to inspect elements of the state’s penal code and remove unnecessary, outdated, or needless punitive sanctions. The bill also managed to reduce certain statutory collateral consequences of convictions by enabling ex-offenders to more easily receive and maintain driving and occupational licensure. SB 64 also raised the felony theft threshold from $500 to $750, allowing judges more flexibility and discretion in sentencing. Most importantly, the bill established the Alaska Criminal Justice Commission (ACJC), a convening of all relevant justice system stakeholders tasked with sifting through the data gathered by PSPP personnel and making recommendations to the legislature (Alaska Senate Judiciary Committee,

2014).

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Despite the hurried nature of the legislation, SB 64 was expected to implement enough marginal changes to delay the need to construct an additional prison in the next three years, long enough for the JRI process to be fully implemented with more substantive reforms (Coghill,

2014). Meanwhile, the ACJC would begin meeting to provide the second session of the 2015-

2016 state legislature with an omnibus reform bill to reverse the steadily-increasing prison population.

The 16-month endeavor was attended by law enforcement, prosecutors, judges, mental health professionals, and Pew staff dispatched from Washington. Together, the ACJC produced a report outlining the state’s system cost drivers, inefficiencies, and overly tough sentences that failed to produce the desired outcome. The report’s seven recommendations were codified into

SB 91, covering all aspects of the criminal justice system from pretrial diversion to reentry support. The bill was again sponsored by Sen. Coghill, who navigated the legislation through his chamber receiving only two “nay” votes.

The Alaska House, however, proved to be far more difficult. To the north of Anchorage lies the “MatSu Valley,” the low-lying landed between the Matanuska and Susitna rivers in the foothills of the three mountain ranges that surround the metropolitan area. Functioning as a commuter suburb for the city proper, cities in the MatSu Valley such as a Wasilla and Palmer collectively hold roughly one-third of the area’s residents. In recent years, the Valley has also experienced an uptick in property crimes. In Wasilla alone, from 2011 to 2015, incidents of theft rose 14 percent. Vehicle thefts rose 10 percent over the same period (Wasilla Police

Department, n.d.). In response to this perceived crime wave, residents banded together to form

“Stop Valley Thieves,” a Facebook-hosted group initially created in July of 2013. Originally functioning as an online alert network, the temperament gradually became less reactive and more

108 proactive, parroting “tough-on-crime” rhetoric and calling for similar policies like sentence enhancements and mandatory minimums (Stop Valley Thieves, n.d.). With over 12,000 page members, the group started to function as a cohesive political entity.

During the contentious two-day floor debate in the House, a bipartisan group of members from Anchorage and the MatSu Valley attacked SB 91 as “soft on crime” and as abetting violent criminals (Brooks, 2016). Further, both opponents and proponents sought to amend the bill, either to blunt its effect or to make it more aggressive than the ACJC recommended, with a total of 44 amendments being considered. It is uncommon for authors of embattled bills to accept amendments, and only 10 were attached to the final bill. One such amendment, lobbied for by the Drug Policy Alliance, amended the omnibus reform package to prohibit civil asset forfeiture and compelled a conviction before property could be summarily taken. The third reading 28-11 passage of the bill was immediately challenged for reconsideration, and was passed again 28-10 on June 11, 2016.

Given the content added to SB 91 in the House, the Senate would be required to approve a conference report accepting the amendments. Sen. Coghill, however, was not part of the

House floor debate and was taken by surprise with the amendments, specifically the prohibition on civil forfeiture. The Pew staff in the state, focused squarely on population control and sentencing mechanics, had no guidance to offer Coghill on the matter. Cohen—Right on

Crime’s subject matter expert on forfeiture—prepared documentation explaining how the change in law was intrinsically part of conservative criminal justice reform; a sentiment echoed in a memo Cohen secured from signatory and former Virginia Attorney General and gubernatorial candidate Ken Cuccinelli. SB 91 was sent to Governor Walker, who signed the bill into law on

July 11, 2016.

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Despite the alterations that took place as the bill progressed through both chambers, the final product was still estimated to produce a noteworthy effect. By reserving facility beds for violent offenders and using community and rehabilitative treatment options for substance abusers, the legislation is expected to save $380 million over the course of the following decade,

$211 million directly and $169 million in obviating the need to build new facilities. Of those savings, $99 million will be repurposed to reinforce rehabilitation programs and community corrections (Shedlock, 2016).

However, the controversy surrounding SB 91 persisted. With the Alaska Legislature meeting annually for close to six months at a time, representatives seeking reelection in a primary have a little under three months from sine die to the August primary. This period was fraught with intense debate, in which both proponents and opponents of the bill were chastised

(e.g.: Armstrong, 2016). When the dust settled, 7 incumbents had been defeated: 4 who had voted for SB 91, 3 who had voted against. Similarly, 8 incumbents were reelected: 4 who had voted for SB 91, 4 who had voted against (J. Luppino-Esposito, personal communication,

October 5, 2016). There is no ostensibly link between a representative’s vote on omnibus criminal justice reform and electoral outcomes, despite agitation to that effect.

As noteworthy as the dissolution of the connection between “tough-on-crime” rhetoric and electoral success might be, Alaska was home to a more pronounced manifestation of this sea change two years earlier. In 2008, former Anchorage mayor Democrat Mark Begich defeated

Republican Ted Stevens for the junior senator position in the United States Congress. Coming up for reelection in 2014, Begich faced a challenge from former Alaska Attorney General Dan

Sullivan. During the toss-up race, Begich hit Sullivan with a Willie Horton-style attack regarding a murder that occurred during his tenure as attorney general. The advertisement

110 backfired, receiving a “pants on fire” from fact-checker project Politifact and leading Begich to cancel the remaining airings (Carroll, 2014). Begich was defeated 48 percent to 45 percent in

November, 2014 (Joseph, 2014).

Federal Reform Work

In 2015—only five years after its creation—Right on Crime was a major party in criminal justice reform at all levels of government in the United States and abroad. Just one year prior,

Marc Levin was honored as one of Politico Magazine’s “Top 50 Politicos,” alongside Pope

Francis and Rand Paul, for his work and leadership in the reform movement (Hoeweller, 2014).

Senior Fellow and reform progenitor Jerry Madden had visited Australia at the request of the

Victorian Parliament to explain how he averted the looming crisis of 2007. Even the United

Kingdom’s Lord Chancellor and Secretary of State for Justice Michael Gove visited the Austin headquarters for a day-long meeting on applying the Texas experiment to the prison system of

England and Wales (Sherlock, 2015). However, Right on Crime had only limited involvement, and therefore limited impact, at the federal level.

Policy staff from the campaign have worked on federal legislation when the rare opportunity presented itself. At the invitation of Senator Ted Cruz (R-Texas), Levin testified as a minority witness before the U.S. Senate Judiciary Committee on September 18, 2013, focusing abstractly on the need to reduce reliance on mandatory minimums (Levin, 2013). However, little interest was garnered from a Democrat-controlled Judiciary while Republican senators were reticent to spend political capital to benefit the Democrat majority and the sitting Democrat president. Two bipartisan pieces of Senate legislation, the Smarter Sentencing Act of 2014 (S.

1410) and the Recidivism Reduction and Public Safety Act of 2014 (S. 1675), were both granted

111 hearings and targeted sentencing and risk-responsive programming, respectively. The 113th

Congress recessed without any major reform being advanced to the lower chamber.

The “Republican wave” of the 2014 general election reinvigorated the campaign’s hopes of advancing conservative criminal justice reform in Congress. With Republicans now holding a majority in the Senate and a 59-seat majority in the House, Levin felt that the 114th Congress would present an unrivaled opportunity to bring the litany of Texas reforms to federal criminal law. Right on Crime staff members were brought before congress to testify on criminal justice reforms; Levin reprising his early Senate testimony before the U.S. House Committee on

Oversight and Government Reform in July of 2015 and Cohen on reauthorizing the Juvenile

Justice and Delinquency Prevention Act (JJDPA) before the U.S. House Education and the

Workforce Committee in October of 2015 (Cohen, 2015a).

With the growing interest in criminal justice reform, other national organizations started to concentrate on advancing federal legislation. Pew’s PSPP saw this opportunity as well, and devoted some of their internal technical support and contract government relations capacity to creating a legislation that mirrors advances achieved in the states. Most notably, three large foundations and one corporate entity—the Laura and John Arnold Foundation, the Ford

Foundation, the MacArthur Foundation, and Koch Industries—banded together to from the largest bipartisan state/federal criminal justice reform coalition yet created. The collaboration contained two separate entities: the Coalition for Public Safety (CPS), a 501c3 nonprofit focused on funding original research, and the U.S. Justice Action Network (USJAN), a 501c4 organization created to explicitly support or oppose items of legislation, action prohibited to

501c3 nonprofits, both formally launched on February 19, 2015.

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CPS/USJAN membership was designed to consist of equal membership on both sides of the ideological aisle. The conservative side included Right on Crime, Grover Norquist’s

Americans for Tax Reform, the Faith and Freedom Coalition, and Freedomworks. Similarly,

The American Civil Liberties Union, the Center for American Progress, the Leadership

Conference on Civil and Human Rights, and the National Association for the Advancement of

Colored People made up the liberal wing of the coalition.

Of all the organizations within the coalition, Right on Crime’s four designated criminal justice policy personnel represented the greatest capacity for policy analysis. However, being the only entity in the group located outside of Washington, the campaign’s ability to communicate that analysis to elected officials and staff was lacking. With the impending push on criminal justice expected in the 114th Congress, leadership at the TPPF decided to authorize expanding Right on Crime to include a policy analyst located in the nation’s capital. Relying solely on recommendations from other conservative organizations, the campaign flew Joe

Luppino-Esposito—general counsel for ALEC’s state fiscal reform arm, State Budget

Solutions—to Austin to interview with Rollins in early May of 2015. Luppino-Esposito was hired during the visit, and he was able to witness the hectic closing days of Texas’s 84th

Legislature.

At the time of Luppino-Esposito’s hire, only one item of criminal justice reform legislation had been filed: the Corrections Oversight, Recidivism Reduction, and Eliminating

Costs for Taxpayers in Our National System (CORRECTIONS) Act of 2015. Authored by

Senate Majority Whip John Cornyn (R-Texas), the bill focused mostly on creating pathways for low-risk adjudicated inmates in federal custody to reduce their sentence by completely various programs and milestones and strengthening federal risk assessment capacity (Haugen, 2015).

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The bill was coauthored with Sheldon Whitehouse (D-Rhode Island), another prominent member of the Senate Judiciary Committee. At a press conference in Dallas in April of 2015, Senator

Cornyn alongside Cohen, TDCJ leadership, and several ex-offenders discussed how the legislation would help address federal overcrowding and poor reentry policy. Ultimately, the

CORRECTIONS Act failed to find purchase among the Democrats, who saw the reforms as tepid.

On June 25, 2015, longtime U.S. House Committee on the Judiciary member Jim

Sensenbrenner (R-Wisconsin) and ranking member of the U.S. House Committee on Education and the Workforce Bobby Scott (D-Virginia) jointly filed the Safe, Accountable, Fair, Effective

Justice Reinvestment Act of 2015 (SAFE Justice Act, H.R. 2944), the most ambitious piece of criminal justice reform legislation brought before Congress. The bill radically changed drug sentencing laws, shifting the focus on the accused’s role within the trafficking organization versus simply the amount of substance the offender was caught in possession of. Further, the bill mandated that mandatory minimum sentences would only apply to those in leadership roles in criminal organizations. The legislation would have also added new triggering provisions to the federal “safety valve” for certain drug and gun offenses.

The SAFE Justice Act also tried to tamp down federal overcriminalization—an overreliance on criminal sanctions—to punish behavior of dubious criminal nature. The bill mandated the Attorney General be required to catalog all criminal offenses (a near-impossible task due to the volume of administrative regulations carrying criminal sanctions). Agencies wishing to promulgate offense-carrying regulations would have to seek approval from the

Attorney General, and all new regulations with criminal penalties would require renewal after five years. The bill required as well a public disclosure of all criminal offenses found in the

114 regulatory code and created a way for defendants to report to the inspector general if they believed the government was improperly applying criminal regulations. Notably, these and other procedural protections would apply to “street” crimes, too (H.R. 2944, 2015).

Although the vast majority of the advocate and analysis groups active in federal criminal law supported the legislation, the SAFE Justice Act was seen as “radical” by the law enforcement and prosecutor lobbies and likewise by several members of the more moderate

Senate. To assuage concerns of the vocal minority and to hedge against engendering any political vulnerability to “tough-on-crime” attacks, the leadership of both chambers’ Judiciary committees filed replacement criminal justice reform bills that would be less controversial to advance. Behind the scenes, Luppino-Esposito worked with Senate Judiciary leadership on salvaging elements of the SAFE Justice Act, while Freedomworks and the Faith and Freedom

Coalition performed the same function in the House Judiciary Committee. The last action executed on the SAFE Justice Act was an ignominious referral to a subcommittee of the

Judiciary on July 9, 2015—an action that essentially signaled its demise.

The Senate Judiciary was the first to file their replacement bill, the Sentencing Reform and Corrections Act of 2015 (S. 2123), on October 1, 2015. Incorporating a good deal of the

Cornyn/Whitehouse CORRECTIONS Act and less controversial provisions from the SAFE

Justice Act, this item of legislation was authored by Senate Judiciary Committee chairman

Chuck Grassley (R-Iowa), a longtime adherent to “tough-on-crime” policy since his first election to Congress in 1974. This bill still targeted reductions in mandatory minimum sentences, recalibrated drug sentencing (such as retroactive application of the 2010 Fair Sentencing Act), and expanded the federal safety valve on certain drug offenses. With 16 Republican and 20

Democrat sponsors, many of whom possessing seats on the Judiciary Committee, the bill looked

115 to be in the best state to advance and was voted from committee on October 22 and placed on the calendar for October 26, 2015.

Similarly, House Judiciary chairman Bob Goodlatte (R-Virginia) filed Sentencing

Reform Act (H.R. 3713) on October 8, one week after its senate companion. Similar in most regards to the senate legislation, the Sentencing Reform Act omitted a substantial portion of the federal prisons component preserved from the CORRECTIONS Act. The missing portion was amended into the Sentencing Reform Act during the bill’s consideration and mark-up section on

November 18, 2015, and it was reported out of committee shortly thereafter. However, the house bill’s sponsorship was notable more partisan, featuring 19 Republican and 60 Democrat cosponsors in a chamber that was more strongly Republican.

In regards to legislative positioning, criminal justice reform was in an enviable position in late 2015. With identical (and therefore easily conferrable) pieces of legislation in both chambers, sponsors would be able to avoid having to navigate the other chamber’s politics. If both S. 2123 and H.R. 3713 were to be voted favorably from their respective chambers, the only remaining step would be to “merge” the two items of legislation through a conference committee of those involved in the bill’s creation before passing final enrollment and being sent to the desk of President Obama. Obama, having publically called for such legislation to be sent to him, would have likely enacted it into law. Unfortunately, neither bill left their chamber floors.

With 2016 being a presidential election year, most Republican presidential campaigns launched during the summer of 2015. As in most primary elections, candidates campaign on issues and positions that invigorate their partisan electoral base. As the Republican political base has historically responded to “tough-on-crime” rhetoric and policy, many candidates assumed more traditional positions during the primary cycle. Senator Cruz, a vocal proponent of the

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Smarter Sentencing Act of 2013, became openly hostile to similar provisions in the hearing for the Sentencing Reform and Corrections Act. With the campaign frontrunner and eventual nominee and President-elect using “tough-on-crime” rhetoric, others in the Republican Party felt less freedom to break ranks with the messaging of the Donald Trump presidential campaign. To entice conservatives in Congress to return to outwardly supporting criminal justice reform legislation, the leadership of the Judiciary Committees again set out to provide an olive branch.

With Republicans needing additional political cover to support legislation superficially at odds with the party’s apparent nominee, Grassley and Goodlatte filed separate bills addressing mens rea, a complex area of criminal procedure, in hopes of amending the legislation to the omnibus criminal justice reform bills.

Mens rea, or “guilty mind,” represents the one of the necessary elements to committing a crime, the other being actus reus, the literal action. While the actus reus tends to be easily satisfied binary question, elements of mens rea are far more gradient, with the law for example requiring a substantial difference in punishment if an offender knowingly committed and act or willfully committed an act. Since the law is often silent on an offense’s requisite state of requisite culpability, judges are given discretion in selecting and applying a mens rea standard

(Thompson, 2016). This subjectivity is especially unsettling to conservatives, because the vast majority of administrative law carrying criminal penalties is created, enforced, and adjudicated by unelected bureaucrats and is often employed in environmental and white-collar contexts.

On November 16, 2015, Chairman Goodlatte filed H.R. 4002, the Criminal Code

Improvement Act of 2015, alongside ranking Judiciary Committee member John Conyers (D-

Michigan). An ambitious piece of legislation, H.R. 4002 would have essentially established a default mens rea standard for all instances where federal law is silent on the matter. Two days

117 later, Senator Orrin Hatch (R-Utah) introduced the Mens Rea Reform Act of 2015 (S. 2298), a modest reform that among other small changes would establish a default standard where the law is silent and there is no existing case law. The latter bill did bring some reticent Republicans back to supporting reform legislation, with Senators Cruz and Perdue (R-Georgia)—both adversarial to sentencing reform during earlier hearings—cosponsoring S. 2298.

While S. 2298 and H.R. 4002 did soften some Republicans on reform legislation, it was far more caustic to Democrats. Painting the suggest reforms as a “corporate carve-out,” the

Democrat leadership took to the media calling mens rea reform a “poison pill” (Durbin,

Whitehouse, & Schiff, 2016). Department of Justice attorneys testified against the bills in committee, while former U.S. attorneys testified to the necessity of mens rea reform (Malcolm,

2015). By the end of summer 2016, the bills remained unheard or amended on the floor.

With the legislative window of the 114th Congress quickly closing, the stand-alone sentencing reform bills would have to advance on their own merit. However, in the charged political environment leading up to a presidential election with one candidate explicitly branding himself as a “law-and-order” populist while running behind in most polling, chamber leadership was reticent to force their membership to take difficult votes. In a meeting with Levin, Luppino-

Esposito, and the conservative members of the CPS/USJAN coalition. Speaker of the U.S. House

Paul Ryan, reiterated his support for criminal justice reform legislation and promised a vote in

September if the majority of the Republican Caucus wanted it (see also Taylor, 2016). Senate

Majority Leader Mitch McConnell simply said no, citing the divide among Republican senators.

Senator Grassley, having whip-counted the votes for Sentencing Reform and Corrections Act alongside Senator Cornyn, estimated that there were “65 to 70 votes — enough to override a

118 veto” (Keller, 2016). The legislative business of the 114th Congress drew to a close in December of 2016, with criminal justice sentencing reform dying without a floor hearing.

Omnibus criminal justice reform was not the only casualty of federal partisan politics.

The JJDPA reauthorization, which Cohen had testified on in October of 2015, was stopped in the

Senate, with Senator Tom Cotton (R-Arkansas) placing a procedural hold on the companion legislation as it eliminated the VCO exception discussed in Chapter 2. This hold led to an aggressive showdown between Cotton and Grassley over the provision’s removal, which was supported by Grassley, 98 other senators, Right on Crime, and nearly all juvenile justice activists. As a compromise, the VCO exception was left untouched in the reauthorization.

In spite of these setbacks, Right on Crime did achieve a modicum of success on the federal level. Alongside TPPF mental health fellow Kate Murphy, Right on Crime assisted

House Majority Whip Steve Scalise (R-Louisiana) as he helped Representative Tim Murphy (R-

Pennsylvania) pass the Helping Families in Mental Health Crisis Act of 2016 (H.R. 2646), a bill with profound implications for local criminal justice systems. Most notably, the Republican

National Committee adopted a resolution calling for an overhaul of the federal criminal justice system mirroring the success of the states, a resolution authored upon request by Right on Crime

Senior Policy Analyst Greg Glod. The resolution was proposed by Republican Party of Texas chairman and former TDCJ Board vice chairman Tom Mechler (Tau, 2016).

CONCLUSION

After launching with only two analysts in 2010, Right on Crime has experienced substantial growth over its first six years. Originally designed to help states needing technical assistance replicate Justice Reinvestment Initiative-style (JRI) reforms by arming prominent conservatives with policy knowledge needed to further the cause, the campaign now features

119 eight full-time staff in Austin, Texas and three remote employees in Oklahoma, Louisiana, and

Washington, DC. Similarly, Right on Crime’s scope-of-work has expanded, as well. Early prioritized reforms were limited to advocating for restorative justice and reserving prison space for the higher-risk offenders. As of December 2016, the campaign is actively working on issues in policing, grand jury, pretrial and bail, risk assessment, and reentry, in addition to prison reform.

Before the bellwether Texas reforms were passed in 2007, Connecticut faced a similar crisis three years earlier. With a prison capacity overage compelling the states to contract with a neighboring state to absorb the growing prison population, lawmakers in the Nutmeg State agreed to set aside the bipartisan “tough-on-crime” rhetoric that had taken hold to work toward a pragmatic solution to state criminal justice policy issues. While the scope of these initial reforms were modest given the Connecticut’s relatively small size, advocates found that JRI-style policy shifts could be politically practical in the face of fiscal headwinds. However, it was not until the passage of HB 1679 during Texas’s 80th Legislature in 2007 that the concept proved viable in a conservative state.

In the wake of Texas’s success, legislators and stakeholders in other states started to reach out to the conservative Texas Public Policy Foundation for assistance both in crafting a politically viable piece of legislation and in conveying the Texas reform experience to reticent legislators. Right on Crime was formed as a vehicle through which to provide this assistance, and the campaign immediately found the need to reform the floundering criminal justice systems in other conservative-leaning states.

The first state Right on Crime formally worked in outside of Texas was Georgia, another large southern state facing similar capacity constraints. Working closely with conservative

120 mainstays that having signed on to the Statement of Principles like Newt Gingrich and Kelly

McCutchen, the campaign was able to advance HB 1176, a piece of reform arguably more ambitious than Texas’s HB 1679. With two conservative states having finalized reforms stewarded by Right on Crime, the campaign was increasing in size, scope, and legitimacy.

TPPF’s standing among its peer institutions increased, as well. Having successfully partnered with an SPN group in Georgia, similar opportunities for collaboration presented themselves in both Louisiana and Oklahoma. As the site of a stalled attempt at JRI, Right on

Crime was able to pioneer the “state director” model of engagement in Oklahoma, a concept that has since been replicated in Louisiana. Alaska illustrated how a concentrated vestige of “tough- on-crime” sentiment could threaten to derail the JRI process. Setbacks aside, these conservative states have all passed omnibus criminal justice reform legislation.

However, not all Right on Crime efforts have been wholly successful. Right on Crime’s consolation victories at the federal level mark a missed opportunity for more impactful reform and an avenue for future growth. The future of the campaign and the future of conservative criminal justice reform will be discussed in the fifth and final chapter.

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CHAPTER 5

THE FUTURE OF CONSERVATIVE CORRECTIONS

Right on Crime’s rapid growth has illustrated two key truths: that there is a willingness in both the policymakers and the electorate for criminal justice reform, and that this willingness is no longer constrained to one end of the ideological spectrum.

Notably, this growth also is now enabling Right on Crime to expand beyond working solely on sentencing and corrections policy. The campaign has deliberately hired two policing scholars in anticipation of a litany of police and pretrial policy legislation being filed during Texas’s 85th Legislature. Concurrently, Right on Crime is seeking to hire a former district attorney, because prosecutors represent one of the last few collective efforts impeding reform work.

In this context, one purpose of this final chapter is to consider the future of Right on Crime. It will begin discussing the immediate future of the criminal justice reform effort in Texas, campaign-led JRI efforts in both Louisiana and Oklahoma, and on juvenile-specific reforms in Utah. This chapter will also discuss the new avenues of criminal justice reform outside of sentencing and corrections that Right on Crime has become more active in during recent years, including in policy areas like policing, bail, and occupational licensure.

Beyond Right on Crime, a second purpose of this chapter is to consider the future of conservative criminal justice reform more generally. Although many advances have been led by elected officials in red states, the recent election of Donald Trump suggests that punitive populism might remain a source of political capital for conservative politicians. Thus, President Trump expressed “law-and-order” rhetoric during his

122 presidential campaign and surrounded himself with totemic “tough-on-crime” sheriffs such as Maricopa County’s (Arizona) Joe Arpaio and Milwaukee County’s (Wisconsin)

David Clarke. President Trump’s appointments have also been mixed in terms of signaling a coherent position on criminal justice policy. Four Right on Crime signatories served in the upper echelon of the transition effort—Steve Moore, Ed Meese, Bob

Woodson, and former Ohio Secretary of State and Mayor of Cincinnati Ken Blackwell— and Rick Perry has been nominated to helm the Department of Energy. President

Trump’s rhetoric in states facing an opioid crisis favors both rehabilitation and strengthening punishments for dealers and traffickers. The nomination of Senator Jeff

Sessions (R-Alabama) is equally nuanced, given that he has both championed certain elements of federal criminal justice reform and was an outright obstructionist on others.

The future seems far from certain.

Accordingly, the second half of the chapter explores the philosophical underpinnings of conservatism more broadly and then discusses how these values translate to the work of Right on

Crime. Conversely, this section will make the case on how the “tough-on-crime” status quo ante is anathema to conservative values despite the success that the rhetoric has delivered to lawmakers standing for election. Finally, this section will take an account of the trajectory of both Right on Crime and “tough-on-crime” in order to postulate the future of each.

THE FUTURE OF RIGHT ON CRIME

The 2017 legislative year promises to be a difficult endeavor for the Right on Crime campaign. Regardless of full-time or part-time status, all state legislatures will commence their session within the first four months of 2017. Texas’s biennial legislative session is among the nation’s shortest given the time between regular meetings, allowing for no more than 140 total

123 days from convening to sine die. Further constrictions on the legislative process exist, such as the mandate in the Texas Constitution that a cost-neutral budget be passed that will necessitate that a contentious near-thousand-page bill be considered and advanced before lesser legislation can be heard.

Right on Crime will also face uncertainty on the federal level, with newly elected president Donald Trump having campaigned, albeit abstractly, using “tough-on-crime” rhetoric, offering up no specific policies for debate. Adding to the confusion was his nomination of

Senator Jeff Sessions (R-Alabama) for the post of Attorney General. While Sen. Sessions has been obstinate on recent legislation passing through the U.S. Senate, he has in the past championed criminal justice reforms, such as advocating for parity in crack and powder cocaine sentencing policies. Collectively, advocates are divided on the future of federal criminal justice reform under the nascent administration (Wheeler, 2016).

Continuing JRI Reforms in Other States

However, considering that Right on Crime focused solely on state reforms until 2015 and that over 95 percent of all prisoners are prosecuted under state law and are held in state facilities, the campaign will likely continue to use its proven model of state engagement (Bureau of Justice

Statistics, 2016). Three states—Louisiana, Oklahoma, and Utah—are presently scheduled for justice reinvestment work in 2017, in addition to those the TPPF will be championing during the

Texas legislative session.

Chief among the reforms proposed in Texas is to divert offenders away from the state’s failing network of state jails. As highlighted in Chapter 2, Texas created the state jail system in

1993 with the best of intentions: to minimize collateral consequences with short terms of incarceration while providing a concentrated dose of both criminal and substance abuse

124 treatment. Like most states, Texas’s penal frequently channeled misdemeanants to probation or county jail while felons were often incarcerated in state prison. However, as most county sheriffs lacked the resources to provide this hybrid model of punishment and rehabilitation, control of the facilities was placed under the state. Concurrently, the state penal code did not allow for misdemeanants to be sentenced to state facilities, while the lowest level felons (those adjudicated of a 3rd Degree Felony) could not serve less than two years in prison. Lawmakers created a fourth tier of felony offenses—the state jail felony—to allow offenders to be sentenced to these facilities (Moll, 2012).

However, as time wore on, the legislature began using the state jail felony as a catch-all for offenses that were not considered egregious enough to earn offenders a sentence to state prison but were more severe than would be appropriate for them to be sentenced only to probation. Violent and property offenses began to appear in this category, with only one-third of inmates in 2015 matching the original criteria (Texas Department of Criminal Justice, 2015).

This changing prison population led the legislature and administrators to cut funding to the rehabilitative elements of Texas’s state jails. The results predictably followed suit, with state jails now producing a re-incarceration rate of 30.7 percent, compared to that of the average prisoner—an ostensibly higher-risk population—of 21.4 percent (Legislative Budget Board,

2015).

In order to draw down state jail populations and channel adjudicated state jail felons into more effective sanctions, the TPPF is advocating for a graduated sentencing scheme for individuals charged with “simple possession” state jail felony-level offense, the lowest category of possession for “harder” Schedule I drugs such as cocaine and methamphetamine. For the first three offenses, the Foundation is proposing a Class A misdemeanor. On the fourth offense,

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“simple possession” is enhanced back to a state jail felony, although the offender is sent to a substance-abuse felony punishment (SAFP) facility. On the fifth offense, “simple possession” is enhanced to 3rd Degree Felony, leading to prison. Each type of custody produces a lower recidivism rate, and since the majority of these populations only offend once or twice ,the savings will be noticeable (Legislative Budget Board, 2015). The TPPF will be championing other criminal justice reforms during the 85th Legislature, discussed in the next subsection of this chapter.

Right on Crime will also resume JRI work in states with a State Director employed by

ROC. Shortly before the death of the Pelican Institute’s Kevin Kane, Right on Crime solicited and hired the first State Director in Louisiana, Elain Ellerbe. Ellerbe is unique among Right on

Crime personnel. While most have experience in law and policy, she was involved in the criminal justice system as a reentry service provider. With Kane’s untimely death, Ellerbe was quickly elevated to a leadership position within the LaSOC, the partnership of business and advocacy interests looking to reduce the state’s nation-leading incarceration rate.

The 2017 goals of LaSOC are twofold: first, ease reentry for those exiting jails and prisons, and, second, support the JRI effort headed up by the Pew PSPP. Although the specific policy recommendations of Louisiana’s JRI effort will not be finalized until the legislative session begins in April of 2017, advocates have started to advance policies that will make securing employment easier for ex-offenders. The first reform LaSOC is advocating is replicating Texas’s approach to easing the reentry process on collaborators through civil indemnification, specifically to mentors used in Louisiana’s specialty courts. Judges will also be empowered to issue “certificates of employability” to those who are participating in reentry courts. Finally, LaSOC is advocating a pair of criminal record-based reforms: first,

126 implementing a ban on initial inquiries into applicants’ criminal histories for public sector employers, and, second, expanding eligibility for the sealing of criminal records after a specified time has elapsed (Louisiana Smart-on-Crime, n.d.).

With Adam Luck having moved on to a 501c4 organization advocating for conservative reforms in Oklahoma (including criminal justice), Right on Crime hired another atypical team member: Oklahoma City news personality and Republican consultant Andrew Speno. Speno is perhaps facing a greater challenge: the sweeping reforms pushed by Luck, while thorough, did not solve the entirety of the state’s correctional issues. Additionally, with House champions

Representatives Billy and Peterson having reached their term limits, the preexisting assemblage of reforms would need to be built anew. This task was further complicated when Governor

Fallin’s Justice Reform Task Force’s work was extended by a month after producing suggestions too tepid to address Fallin’s concerns (Cosgrove, 2016). While this series of events bodes well for the state executive’s tolerance of radical reforms, it makes the legislative advocacy task more difficult. Finally, Right on Crime will be engaged in juvenile JRI efforts in Utah, although the relevant will not have the recommendations finalized until mid-2017.

New Initiatives

In addition to advocating reforms directed at reducing incarcerated populations and facilitating reentry, Right on Crime has steadily been increasing the scope of criminal justice policy recommendations that align with conservative principles. While the campaign expounds the conservative rationale for criminal justice reform at length in the Statement of Principles, detractors frequently accuse the campaign of being a “Trojan horse” due to policy positions similarly advocated by liberal or progressive groups (see, e.g., Haugen, 2016). Conscious of this

127 criticism, Right on Crime began to include advocating for conservative reforms in areas outside of the sentencing and reentry once the campaign had the personnel to do so.

The first nontraditional avenue of criminal justice reform was in combating overcriminalization, a term that did not exist in the legal vernacular until 2015.

Overcriminalization currently lacks a universal definition, though it is frequently evoked to describe criminal penalties for activities that are not per se criminal, the criminalization of behavior by an entity acting outside of its traditional jurisdiction, and for the punishment of criminal behavior far in excess of harm caused (Bradley, 2012). Overcriminalization is seen in most states’ penal codes in humorous examples such as Texas’s Class A Misdemeanor prohibition against lying in a fishing tournament and or Class B Misdemeanor offense of mislabeling a container of citrus fruit (Reddy, 2014). Most frequently, overcriminalization reform is used to restrain the growing federal administrative state (Bradley, 2012).

During the 84th Legislature, the TPPF pushed an ambitious overcriminalization agenda, passing several reforms contained in HB 1396. HB 1396 as filed would have just codified the rule of lenity, an element of judicial canon that instructs judges to err in favor of the defendant in the face of two equally plausible interpretations of vague law. However, after clearing both chambers of the Texas Legislature, the bill also raised felony theft thresholds to $2,500, codified the warrant requirement for cell phone searches established in Riley v. California, and established a commission for the review of all offenses outside of the Penal Code (Cohen &

Levin, 2015).

The Texas Commission to Study and Review Certain Penal Laws was a nine-member body tasked with reviewing the entirety of state law outside of the Texas Penal Code and recommend laws for elimination, consolidation, or simplification. Appointment authority was

128 given to the Governor Abbott, Lt. Governor Patrick, Speaker Straus, Chief Justice Hecht, and

Presiding Judge Keller. Having brought idea to the legislature in the form of HB 2565, Levin was placed on the commission by Chief Justice Hecht. Meeting from Fall 2015 to Summer

2015, the group identified hundreds of incomplete, redundant, and outdated statutes in Texas law, all carrying a criminal penalty (Texas Commission to Study and Review Certain Penal

Laws, 2016). During the pre-filing period of the 85th Legislature, several members have submitted bills to address the statutes contained within the report.

Right on Crime has also advocated for the scaling back of occupational licensure requirements, both for those involved in the criminal justice system and the general public.

Operating under the conservative premise that the government should only regulate private commerce where there is a readily-identifiable potential for harm, the TPPF has long advocated that an ex-offender should not be disqualified from licensure unless their crime is relevant to the occupation (Levin, 2012). The 2017 pre-filing period has shown a bill to wholly eliminate the licensure of shampooers and HB 552 by Representative James White that would eliminate the low standard the state must meet to justify licensure. In addition, the campaign has advocated for a limited civil identification of employers who hire ex-offenders, reducing their exposure to frivolous lawsuits.

Right on Crime staff members have also launched a campaign in Texas to reform the way grand juries are empaneled and conducted. Originally a bulwark against the unelected colonial governments and overzealous prosecution, the grand jury system allows members of society to scrutinize the merits of a criminal case before it is brought to a petit jury. This process would ideally hamper targeted prosecutions and allow the common values of society to enter into the

129 proceeding, even if contrary to current law. However, today’s grand juries bear little resemblance to those used near the founding of the republic.

Nationwide, few states have extended protections afforded those accused of criminal activity before the trial jury to the grand jury process. As a result, the grand jury process has evolved into little more than a pro forma hearing that nearly always culminates in an indictment of the accused and bears little resemblance to the original intention of the Fifth Amendment. In most states, prosecutors can try the same case an unlimited number of times, can suppress exculpatory evidence, and can bar counsel from the hearing, even when the accused is brought to testify (Glod, 2016). Texas passed a small reform measure in 2015, eliminating the process whereby grand juries could be hand selected by district attorney-appointed commissioners, often relying upon friends and punitive like-minded associates (Ward, 2015). However, in the 85th

Legislature, the TPPF is looking to expand grand jury protections by mandating that transcripts be made available to the defense, by requiring exculpatory evidence be made known, and by prohibiting subsequent grand juries from hearing the same case without new material evidence being presented.

In addition to strengthening procedural protections afforded in the grand jury system,

Right on Crime was among the first conservative organizations in the United States to speak out about the pitfalls of civil asset forfeiture. “Forfeiture” is a mechanism by which the state obtains ownership and control of an individual’s property, usually via legal convention following an alleged crime. The most well-known form of asset forfeiture used in law enforcement is criminal forfeiture. Criminal forfeiture occurs when law enforcement agents make an arrest and confiscate property that ostensibly was used in the commission of a crime or whose possession

130 came about as the fruit of a criminal act. After a finding of guilt or guilty plea, possession of the property is fully turned over to the state.

However, during the “War on Drugs,” the federal government and all but one state government passed statutes allowing for civil forfeiture. Civil forfeiture replaces the criminal procedure though which the accused is stripped of his or her ownership interest in the property and replaces it with a civil process. In the civil system, the property itself is accused of involvement in criminal activity rather than the owner, and is therefore not subject to the same procedural protections as a criminally-accused individual. Common safeguards such as the right to a speedy trial, counsel, and a “beyond a reasonable doubt” standard of proof are often absent from the process. To conservatives, this arrangement is seen as an unjustified assault on property rights (Cohen, 2015b)

Right on Crime has advocated for civil asset forfeiture reform in seven states as of

January 2017, including on Ohio’s omnibus reform of the practice, HB 347. During the summer of 2016, Cohen worked with the Republican Party of Texas on creating a resolution later passed into the party’s platform (Ramsey, 2016). In the 85th Legislature’s pre-filing period, five bills have been filed addressing the marginal procedural aspects of civil asset forfeiture, and two bills have been filed that either repeal or substantially weaken the practice.

Finally, Right on Crime has hired two dedicated policing scholars in anticipation of reforms announced for the 85th Legislature. Shortly after the 84th Legislature adjourned sine die,

Texas law enforcement made national news following the in-custody death of Sandra Bland, an

African American female after a questionable encounter with state troopers and deputies of the

Waller County Sheriff’s Office. Equally attributable to outdated policing policy, pretrial detention policy, and lack of consistency and enforcement of jail standards, Lt. Governor Patrick

131 has tasked the Senate Criminal Justice Committee with fixing the policies enabling the events that led to Bland’s death (Batheja, 2015). Conversely, the tragic police assassinations in Dallas have prompted several bills providing for enhanced penalties for attacks on law enforcement.

To address this contentious issue area, Right on Crime hired Currie Myers, the former elected Republican sheriff of Johnson County, Kansas as a Senior Fellow. Shortly thereafter, the campaign hired Commander Randy Peterson, a 21-year law enforcement veteran in

Bloomington, Illinois and most recently the Director of the police academy at Tarrant County

Community College as a Senior Researcher. These individuals collectively bring experience in municipal and county law enforcement, with Myers also having experience in running a county jail.

In total, these issues represent items omitted from policy discussion in past years due to the monolithic nature of “tough-on-crime” rhetoric. Although some conservative leaders have worked on addressing these matters individually—for example, Right on Crime signatory Ken

Cuccinelli has been vocal about civil asset forfeiture abuses since his service as Virginia’s

Attorney General—reform in these areas were largely absent from the conversation. Whether these reforms were painted as “soft-on-crime” or “anti-police,” the general consensus was that the potential for political reprisal was too great.

As illustrated in previous chapters, Right on Crime has shown that conservatives and moderate Republicans alike are not placed in political jeopardy for vocally advocating for criminal justice reform. When atavistic “tough-on-crime” accusations do surface in a campaign, they are often used by the trailing candidate before defeat, regardless of party. As more states passed reforms in alignment with conservative values, the façade of criminal justice reform as leftist policy is slowly replaced with good governance. The next section will discuss the

132 philosophical construct of conservatism and how abstract values apply to the Right on Crime reforms.

THE FUTURE OF CONSERVATIVE CORRECTIONS

Right on Crime’s rapid ascendancy in spite of decades’ worth of entrenched “tough-on- crime” policy and rhetoric has surprised many (Khimm, 2012). The reason the campaign has been mystifying to some is that it takes an opposite philosophical position from accepted conservative orthodoxy and argues antithetical ideas on conservatism’s own terms. This incomplete analysis can be simply summarized as “prisons are expensive, therefore society should rely upon them less” (see, e.g., Gottschalk, 2016). As discussed in Chapter 3, it is correct insofar as conservative lawmakers are willing to reevaluate existing positions on a policy issue when that position is directly in conflict with their beliefs and they have an identifiable peer group doing the same. However, the lone fiscal argument is not enough to substantiate why a group so ideologically multifaceted as conservatives were the first to adhere to “tough-on-crime” rhetoric, and why a growing chorus of them have begun advocating for alternatives.

A more nuanced understanding of Right on Crime’s endorsement and impact requires an accurate view of the full set principles of conservatives. This section thus starts by discussing what conservatism philosophically is and is not. This discussion sets the contact for revealing how Right on Crime’s interpretation of conservative philosophy has occurred in direct contrast to

“tough-on-crime” beliefs. An effort is the made to consider how the future of correctional reform might be shaped as different parties use these philosophical interpretations to justify taking divergent paths within the arena of public policy.

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What Conservatives Believe

Conservatism is not monolithic. There is no revered central tome conservative doctrine;

“no Holy Writ and no Das Kapital to provide dogmata” (Kirk, 1993, p. 15). Rather, conservative belief is an aggregation of what conservative intellectuals put forth, a body of work that on the margins can be in self-conflict. For example, the legislative push for the legalization of recreational marijuana use in Texas’s 84th Legislature was championed by Republican representative David Simpson, an undisputed social conservative and a strong adherent to libertarian conservative philosophy (Phillip, 2015). Equally conservative members of lesser libertarian bona fides were able to keep the body from having to take a contentious floor vote, keeping the legislation trapped in House Calendars Committee before adjournment. This example embodies the minor schisms and constant internal disagreements that conservatives frequently find themselves in (Kirk, 1953).

It is equally important to note that conservatism is not rote resistance to change. To the contrary, conservative philosophers throughout history have recognized that a maturing and evolving civil society must have appropriate mechanisms for altering or eliminating key institutions. Irish statesman and early conservative scholar Edmund Burke recognized this need, stating that a nation “without the means of some change is without the means of its conservation”

(1790, p. 19). However, it is in the measured degree and deliberate process afforded to societal changes that marks philosophy as “conservative.”

In the most thorough compilation on contemporary conservative thought, political theorist Russell Kirk (1993) articulated the most common elements of conservative philosophy from Burke to the modern age. Along this timeline, Kirk identifies ten key principles that all facets of conservative thought include, even if under different interpretations. It is in the

134 interpretation of these principles that the conservative philosophy of Right on Crime diverges from “tough-on-crime” rhetoric.

The first tenet of conservative thought is the belief in an enduring moral order, meaning that for society to persist and function there must be harmony from the chaotic Hobbesian State of Nature. Conservatives believe that when a society has common values, a shared sense of morality, and subscribes to a ubiquitous understanding of justice, that society “will be a good society—whatever political machinery it may utilize” (p. 18). Commonly, the “order” contained in “law and order” refers explicitly to this idea; that through rule of law—previously interpreted as strictly punitive sentencing policy—society will be able to flourish.

Second and perhaps most emblematically, conservatives ascribe to “custom, convention, and continuity” (p. 18). This principle holds that contemporary society and subsidiary institutions have achieved their present form through generations of trial and error. To quickly depart from the established orthodoxy is seen as not only rejecting this deliberate process but also as gambling with the continuance of society’s order. This belief represented the fundamental schism in conservative thought surrounding the American revolution between traditionalist conservatives such as Burke and more classically liberal conservatives such as

Thomas Paine. Burke recognized the grievances aired by the colonists and advocated for peaceful and political redress. Conversely, Paine was one of the ideological architects of the revolution seeking to martially cast off the tyrannical, oppressive rule of King George III. Both interpretations were in favor of achieving a state of tranquility, whether that is under continued social order or in the return to previously granted liberties.

In fact, it is the effort to reinvigorate previously granted liberties that typify conservative’s belief in prescription. Upon their founding, the English colonies were given great

135 latitude for autonomy and self-rule. Having migrated to the colonies prior to the Revolutionary

War, Paine witnessed firsthand the gradual restrictions of colonial freedoms by English administrators. The conservative belief in prescription holds that those in the present are unlikely to make new discoveries in morality or behavior and should err to reinforcing the past.

This applies both to positive and negative change; just as conservatives believe that no institution should be created that mimics the role of another, no right identified or liberty once conferred can be stripped from an individual without satisfying very high standards. For example, a prosecutor must prove the case against an accused criminal “beyond a reasonable doubt” before the state is permitted to take property, freedom, or even life. The tenet of prescription partially explains conservatives’ collective belief in the rule of law and procedural sanctity.

Fourth, conservatives believe in prudence when changing institutions. Kirk (1993, p. 20) suggests that individuals rushing into action in the name of reform run “the risk of new abuses worse than the evils they hope to sweep away.” Therefore, conservatives must consciously deliberate on change and any change must be adequately complex in order to effectuate the desired outcome. In the present context, prudence is why conservatives broadly bristle at ambitious criminal justice reform campaigns such as “Cut50,” an effort to reduce the nation’s incarcerated population by 50 percent over the next ten years (Cut50, n.d.). It is not that conservatives are opposed to reducing the prison population or even doing so by such a substantial margin, but rather that such a goal is an abstract and arbitrary reduction that takes no consideration of justice or public safety.

The fifth principle conservatives ascribe to is that of variety. Variety dictates that society must not only be diverse in both individual thought and behavior, but also will experience some degree of inequality. Conservatives believe that equality of outcome can only be achieved

136 through damaging other tenets of conservative thought, such as property rights. In an applied context, this tenet represents Justice Brandies “laboratories of democracy,” allowing similar governments to experiment with novel solutions to their problems for successful solutions to be emulated by others. Most notably, it is the want for variety that reinforces the importance of equality be guaranteed before a court of law, lest the court become a tyrannical mechanism in itself (Kirk, 1953).

Sixth, conservatives believe in humanity’s imperfectability. In the religious context, conservatives feel that Man is unsalvageable outside of the divine providence of Jesus Christ,

Mahdi, or another relevant redeemer. In a secular context, imperfectability refers to the error in striving for a utopian society in the face of society’s fickle passions—a view contrary to progressive ideology. Imperfectability also mandates both prudence and prescription, because imperfect humans seeking sweeping reforms will unlikely success in accounting for all contingencies.

The seventh pillar of conservative thought is the inextricability of freedom and property rights. Deeply entrenched in the writings of John Locke and the founding documents of the

United States, conservatives consider personal property rights as tantamount to liberty. The sanctity of property rights is why conservatives fervently resist the forced redistribution of resources such as in progressive tax policies. If citizens cannot choose how their property is used and how (or upon whom) their money is spent free of government interference, the property then belongs to the collective. “Separate property from private possession,” Kirk (1993, p.21) writes, “and Leviathan becomes the master of all.”

This concept of the collective is nuanced in conservative thought. Conservatives do not categorically reject collectivism; however, they do reject involuntary collectivism. Institutional

137 mainstays in conservative life, such as the church or the neighborhood, are seen as ideal because individuals can freely associate and disassociate should the institution no longer reflect their values. The eighth belief—voluntary community—is also why conservatives are proponents of states’ rights over centralized federal authority: An individual is free to choose the relationships that best facilitate their desired ends.

The ninth tenet of conservative philosophy is the belief in prudent restraints upon power.

With humanity seen as ultimately fallible, arbitrary, and capricious, conservatives naturally believe that those who rise to leadership are equally faulty. When vested with both authority and power, conservatives are fearful of the harm these individuals could bring. Therefore, as a matter of course conservatives seek to bind those in power, requiring increasing levels of collective support for change, depending on its permanence.

Finally, conservatives believe that society must adapt—that it must reconcile both change and permanence in order to preserve the elements of society that they value. Cultural stagnation is likely to damage all institutions, including those most closely held by conservatives.

Conservatives also believe that, more often than not, when one institution is in its ascendency, another is in its decline. It is the prudent balance of which change is most preferable to societal functioning over the long term.

Even with these common threads running through the whole of conservative thought, it is impossible to state with certainty that “the conservative position on X is Y.” By conservatism’s own internal beliefs, two diametrically opposed philosophical beliefs might be equally valid under common conservative doctrine, such as in the aforementioned marijuana example. Still, there have been countless attempts to establish a “conservative purity test,” a method for separating the true conservative firebrands from weak-willed apostates, with modern iterations so

138 doctrinally rigid that President Ronald Reagan would be expected to be found wanting if he were alive today espousing similar beliefs (Cunningham, 2014). This aspiration to reaching their interpretation of unflinching doctrinal conservativism is what motivates many of today’s remaining “tough-on-crime” champions and poses a threat to Right on Crime activities in the future.

Understanding “Tough-on-Crime” Through the Conservative Lens

The first two chapters of this dissertation discussed the adoption and policy implementation of “tough-on-crime” beliefs over the course of five decades. However, outside of rational political gamesmanship, little analysis was given to conservatives’ internal thought process that had led—and in some cases, continues to lead—very well-meaning, right-leaning people to adhere to “tough-on-crime” beliefs. In fact, conservative reform efforts such as Right on Crime wholly recognize the founding rationale of the “tough-on-crime” thought and, in fact, agree with it nearly uniformly. However, it is in the reanalysis of these beliefs where reform- minded conservatives part company with the once-prevailing orthodoxy.

While “tough-on-crime” rhetoric and policy have been present in American politics since the mid-1960s, it was not until the mid-1970s that the idea found purchase among criminological scholars. For two-thirds of the century, liberals and progressives held near-hegemonic control of the academic discourse surrounding crime and punishment. Predictably, this uniform pattern of thought shaped the prevailing concepts accordingly. Nearly all theories of crime posited some external loci of control and decision-making, from the “social disorganization theory” of the

Chicago School to criminal-creating “labeling theory” to societal valuation of success under

“anomie theory,” prevailing criminological theory divested the criminal of some-to-all of the

139 agency of their actions. Each successive theory seemed to go further minimize individuals’ personal responsibility for their behavior.

With the scholastic body of criminology straying further afield of conservative principles and advancing theories incongruous with conservative philosophy, right-leaning scholars pioneered an orthodox theory of criminal behavior. While “conservative criminology” as it came to be known could be seen as a fringe or reactionary theory, it is quite similar to the tenets of classical criminology, such as those outlined by Cesare Beccaria (1775). As a criminal-centric theory of crime, conservative criminology rejects what left-leaning scholars consider the “root causes” of criminal behavior such as social inequality and racially biased institutions. In these causes stead, conservative criminologists reinvigorated the economic decision-making process at the center of classical criminology and the more-recent rational choice theory (Wilson, 1975).

Under this theory of crime, a to-be criminal performs a rational economic calculus of the potential positives and negative outcomes of criminal behavior. If the likely positives outweigh the negatives consequences, the individual will commit the crime (Becker, 1968). The central components of the calculus are largely constant across individuals, although the moral and virtuous individuals in society are further encumbered by the harm their behavior would visit upon others. Therefore, it is the role of policymakers to alter this calculus as much as possible, creating an insurmountable disincentive to criminal behavior. Since the “moral poverty” highlighted by Bennett, DiIulio, and Walters (1996) is largely beyond the ambit of common public policy, the only recourse to alter this balance lies in deterrence (Wilson, 1975).

The adoption of deterrence and rational choice theories both in criminology and public policy was the most predictable outcome in retrospection. As discussed in Chapter 1, the United

States was facing steadily increasing crime rates throughout the majority of the “tough-on-crime”

140 era. This increase in crime occurred in tandem with what many saw as the destruction of social institutions. Since morality cannot be easily legislated into being, lawmakers were left with increasing the “pain”—the punitive harm delivered in the name of justice—that offenders are to endure upon being found or pleading guilty of an offence. This toughening has been nearly uniformly expressed in the lengthening of sanctions, prohibiting punishments seen as lenient such as probation or parole, or by suspending certain procedural protections in pursuit of law and order. In order to deliver these punitive sanctions more effectively, lawmakers have enacted policies that defer to prosecutorial discretion.

In the present, “tough-on-crime” rhetoric and policy proposals is seen in the federal and most state legislatures, albeit less frequently than in years past. This often entails specific enhancements on certain offenses or for habitual offenders. However, no longer is there collective support for the broad toughening of criminal sanctions. The already-burdensome prison system coupled with fiscal realities make overreliance on simple incarceration an unpopular goal for both policymakers and the voting public (see, e.g., Thielo et al., 2016).

Understanding Right on Crime Through the Conservative Lens

Starting in Texas in 2005 and engaging nationally is 2010, Right on Crime is a relative newcomer to the criminal justice policy discussion. This affords campaign personnel and signatories the advantage of hindsight. When a particular policy question arises, Right on Crime is able to draw upon a half-century of criminal justice policy to consider in tandem with their conservative beliefs. Early policy scholars had no such advantage and were constrained to the information at hand, rationally leading them to the quintessential “tough-on-crime” stance on public policy. Once these policies began leading to political advantages, they were adopted wholesale in public policy discussions.

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This position flourished for decades. As crime increased, so too did penalties. Among the proximate outcomes of this policy, the criminal justice system was now better equipped to intercede in habitual criminal offending, even if through no other mechanism than incarceration.

There is a modicum of support to this claim, with studies identifying as much as one-third of the observed crime decline in the 1990s being attributable to the increase in incarceration (Levitt,

2004). However, reliance on incarceration eventually reached a point of diminishing returns.

One dollar spent on incarceration or one person incarcerated in 1980 lost a great deal of its ability to translate into a reduction in crime in 2000. Further, a growing body of research illustrated that one public dollar would be more effective in crime reduction when spent on other criminal justice endeavors, such as policing (Levitt, 2004, p. 189). While “tough-on-crime” proponents are not anti-police in any respect, the philosophy’s overreliance on incarceration expresses a preference for a costlier intervention, even in the face of weakening empirical support. With governments at all levels hesitant to raise spending on criminal justice in the face of collective falling crime rates, this creates a natural tension between the desire to fund incarceration versus the use of less expensive forms of criminal justice sanctions. In light of this tension, the “tough-on-crime” philosophy can only exist if criminal justice—as a core government function—is not held to the same standards of efficiency that conservatives hold other institutions to.

As illustrated in the first declaration of the Statement of Principles, Right on Crime explicitly rejects granting this pass. “As with any government program, the criminal justice system must be transparent and include performance measures,” it states, “that hold it accountable for its results in protecting the public, lowering crime rates, reducing re-offending, collecting victim restitution and conserving taxpayers’ money” (Right on Crime, 2010). With

142 scarce resources available for the protection of public safety from both first-time and repeat offenders, it is critical that each dollar spent in the pursuit of public safety has both a quantifiable and proximate benefit than if it were spent in another manner toward the same pursuit. Reckless public spending with no eye to effectiveness can only exist under burdensome and confiscatory tax policy, antithetical to the beliefs of conservatives.

It is important here to distinguish Right on Crime’s nuanced belief on criminal justice spending from a common false dichotomy frequently used by liberal and progressive policy advocates: that states spend more incarcerating prisoners than on the education of law-abiding students (see, e.g., Ingraham, 2016). Implicit in this observation is that crime can be reduced by redirecting public funding from criminal justice and law enforcement to education. This claim was explicitly advanced in a Department of Education (2016) policy brief, calling for policy makers “to make investments in education that we know work…including significantly increasing teacher salaries” in order to reduce crime (p. 13). However, omitted from the brief is any citation that demonstrates that fungible public money spent on education versus incarceration produces any collective or individual effect.

Second, the growth of the criminal justice system has also led to a marginalization of crime victims and their role within the criminal justice process. Just as the TPPF’s Center for

Effective Justice was originally established to research policy advancements that would prioritize the victim in the criminal process, Right on Crime advocates for victim-centric policies that prioritize restitution above and concurrent with punishment. This includes policies that as monetary punishment is assessed and collected, the victim is made whole prior to the state

(Cohen, 2013). Further, Right on Crime calls for an elevating the preference of the victim, even if the desired outcome is not punitive enough in the eyes of the prosecuting attorney.

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To that end, Right on Crime rejects any undue deference afforded to prosecutors in pursuit of punitive judgments. Right on Crime strongly believes in the role of the prosecutor in delivering justice to a community, and that they should have all available tools in pursuit of justice. However, Right on Crime concurrently believes in a balanced, adversarial system that holds the natural rights to liberty and property inviolate, only depriving offenders of such rights after criminal conduct has been proven. Further, as with all agents of the state, the conservatives of Right on Crime believe that prosecutors must work have reasonable safeguards placed on their activity as they are not immune from individual caprice or malice.

Finally, Right on Crime points out the departure from doctrinal conservatism necessary to facilitate “tough-on-crime” ideology for the entirety of its existence. It is objectively clear that in the 1960s, crime was on the rise and there was a collective public will to address the problem, as illustrated by Goldwater and later by Nixon. Taken in tandem with what was perceived as institutions growing more liberal—for example, the due process revolution in the U.S. Supreme

Court—few policy options remained that were able to deter would-be criminals, save for toughening sanctions.

However, as the decades wore on, sentences kept getting stricter as both crime and incarceration both continued to rise. Not once did prominent voices in the “tough-on-crime” movement call for the reanalysis or reconsideration of the central tenets of their chosen policy.

Instead, the choice was to stay the course and continue increasing the length of sanctions for nearly all offenses without any proof that these increases led to public safety benefits. This continuance also required deliberate blindness to the human costs of incarceration, making it difficult for even low-level offenders to reenter society after their sentence. Right on Crime

144 believes that criminals should be firmly punished but also that every avenue should be made available to them to achieve their own redemption.

While Right on Crime parts company from “tough-on-crime” proponents on several key issues, the two groups overlap far more often. Many well-known progenitors of conservative criminology—William Bennett, John DiIulio, and George Kelling, for example, all being initial early advocates for “tough-on-crime” policies—have since signed on to the Right on Crime

Statement of Principles without having to retract or be dismissive of their earlier works. Both groups of conservatives recognize the high cost that crime imposes on society and that crime must be prevented to the extent public policy can do so. Both groups also realize that the government is both uniquely positioned and justified in being the arbiter of justice. However, the key difference is in the policy prescriptions advocated to achieve that goal.

The Future of “Tough-on-Crime” Versus Right on Crime

At the federal level, Right on Crime appears positioned to capitalize on the collective interest in criminal justice reform. Shortly after the start of the 115th Congress, Senator Grassley announced his plans to refile his omnibus Sentencing Reform and Corrections Act (Kim, 2017).

Widely supported by leadership of both parties, it is likely that the legislation will experience less resistance this session. Vocal opponents of the package, namely David Perdue (R-Georgia) and David Vitter (R-Louisiana), have been replaced on Grassley’s Judiciary Committee, with

Perdue withdrawing and Vitter having lost the Louisiana gubernatorial election. With leadership in both parties still committed to bringing the reform packages to their chamber’s floor, the public polling work of Right on Crime will become increasingly relevant. Further, Vice

President-elect Mike Pence has been a vocal proponent of criminal justice reform both during the

2016 presidential campaign and during his governorship of Indiana (Cadei, 2016).

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While the preponderance of the present trend suggests that Right on Crime will continue in its ascendency, this is far from certain. Shortly after securing the presidency, President-elect

Donald Trump announced that he would nominate Senator Jeff Sessions (R-Alabama) for confirmation to the role of Attorney General of the United States, the highest-ranking criminal justice official in the nation. Liberals, progressives, and libertarians excoriated the selection, all echoing the sentiment that Sessions’s nomination represents an affront to justice. By contrast, conservatives largely supported Sessions, highlighting his ability to restore much of the soured relationship between police and the federal executive (see, e.g., Grawert, 2017; Thompson,

2017). These partisan reactions are to be expected after a contentious presidential campaign, and likewise both assessments are light on historical context.

While never a vocal leader on criminal justice reform in the same vein as his senate colleagues Mike Lee (R-Utah) and Rand Paul (R-Kentucky), Sessions’ long tenure has seen him stake out positions opposite each of these extremes. While initially mirroring the traditional

“tough-on-crime” for drug offenses, Sessions became skeptical of federal sentencing statutes, highlighting how the law created drove racial inequality specifically in the sentencing of cocaine-related offenses. Sessions first introduced legislation that corrected this disparity in

2001, and championed the issue until it won popular support in 2010 (Troyan, 2016).

Additionally, Sessions has not proved to be an unflinching ally of the groups often lobbying against reform. In both 1999 and 2007, Sessions voted against an amendment increasing funding to the Office of Community Oriented Policing Services (Owen, 2016). This history does not mean that Sessions is a reformer, nor is it proof that he is not. It simply suggests that there is far more nuance in his ideological positions than is reducible to an editorial.

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If federal legislation were to stymie, Right on Crime is still oriented to continuing advocating for conservative, state based criminal justice reform. With states as conservative as

Texas, Oklahoma, Mississippi, Alabama, and Georgia all having engaged in omnibus reform within the past decade and several states working toward a second round of reform championed by conservative leadership, Right on Crime looks positioned to continue successfully in advocating for justice reinvestment policy. As the policy recommendations of the campaign continue to expand to other areas of conservative thought, it can be expected that even conservatives skeptical of prison reform will find a great deal of overlap with the policies advocated by Right on Crime.

There is one development that could imperil the efforts of Right on Crime: the occurrence of a new “crime wave.” Just as an uptick in crime partially triggered the birth of the “tough-on- crime” movement, it is wholly plausible that a similar phenomenon could reinvigorate it as it wanes. This is not a policy issue; Right on Crime’s reforms prioritize prison space for those guilty of violent offenses. In fact, Texas’s prison admissions for violent offenders increased both in terms of percentages and raw numbers, while all other categories of admission dropped in the seven years following the 2007 reforms (Cohen & Petersen, 2016). However, a rising crime rate could bring punitive criminal justice policy back to the forefront of the political imagination, even after 15 years of stable opinion and falling crime rates (Gallup, n.d.; Federal Bureau of

Investigation, 2016). As of January, 2017, some evidence seems to suggest that there could be another violent crime increase occurring, while other metrics show a flat trend year-over-year

(Keller, 2016).

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CONCLUSION

For four decades, corrections in the United States was in the grips of mass incarceration thinking and policy, a movement so intractable that imagining a different future seemed a fanciful exercise. But toward the end of the first decade of this century, a unique moment suddenly emerged—a true turning point in the history of correctional policy (Cullen, Jonson, &

Stohr, 2014). By 2010, the mass imprisonment movement—what Pratt (2009) called a national

“addiction to incarceration”—came to a halt. A key factor underlying this reversal of correctional fortunes was the willingness of conservatives to rethink the open check book that had been given to the use of incarceration as a means of domestic defense against crime and the defense of victims.

At this time, a unique set of circumstances led to correctional reform in Texas and then to an ambitious plan to invent a conservative policy organization that would provide the principles and technical expertise to move corrections away from a rigid reliance on incarceration to the use of other ways of sanctioning offenders under appropriate circumstances. Remarkably, this group—the Texas-based Right on Crime—achieved important, if not unprecedented policy advances, predominantly in red states.

Thus, few states adopted “tough-on-crime” politics more than Texas, with both major party candidates in the 1994 gubernatorial election promising more punitive policy than their opponent. Driven both by equal parts policy preference and judicial ruling, Texas added 115,000 secure prison beds over an eight-year period alone while spending nearly twice the percentage of the state budget on corrections than the national average. While the prison population grew,

Texas continued passing “tough-on-crime” legislation, oftentimes limiting the potential sentences an offender may be given to long terms of incarceration. However, Texas—similar to

148 the rest of the United States in its preference of punishment—was not monolithically punitive.

Even during the height of “tough-on-crime” rhetoric, the Texas Legislature established the state jail system: a secure correctional setting designed to administer short, rehabilitation-focused sentences to drug offenders while minimizing collateral consequences. Texas had also been an early adopter of faith-based initiatives in correctional settings.

By 2005, Texas was struggling to pay for the large prison system needed to retain “tough- on-crime” policies. It was in this context that newly appointed House Corrections Committee chairman Jerry Madden was given the mandate to avoid building new prisons necessary to house the growing prison population. Working with Senator John Whitmire, Madden was the architect of the Texas interpretation of justice reinvestment; reserving custodial sanctions for higher-risk offenders while strengthening community corrections to monitor lower-risk offenders. With the help of Marc Levin of the conservative Texas Public Policy Foundation, the legislation passed during the 2007 session, just prior to other states being faced with fiscal realities of continued adherence to “tough-on-crime” policy. Beset with requests from other conservative states seeking help in striking a balance between fiscal prudence and public safety, Levin created the

Right on Crime campaign. Since its formation, the campaign has seen success in numerous “red states,” such as Georgia, Louisiana, Alaska, and Oklahoma.

Perhaps most importantly, Right on Crime and the policy successes of its campaign have challenged two central orthodoxies—hegemonic beliefs long held by those on both ends of the political spectrum—that prevailed during the “tough-on-crime” era. The first orthodoxy is that conservatives will always be aligned with get-tough policies that rely heavily upon imprisonment. By severing this conservative-imprisonment link, Right on Crime has unleashed a sea of innovative thinking based on conservative principles. These ideas provide a coherent

149 approach to broader criminal justice reform, such as in areas of overcriminalization. Conservatism thus has been freed from the box of the get-tough orthodoxy to be engine for reform.

The second orthodoxy challenged by Right on Crime is the belief that mass imprisonment is an inevitability that would never end, especially in southern red states. The organization has demonstrated that political action can be effective if it is principled and undertaken with political expertise and in the context of positive political relationships. It is ironic that it has taken a conservative policy group to prove that meaningful change is possible. Notably, Texas lawmakers have shown in one biennial session after another that they are no longer beholden to the “tough-on-crime” agenda and are willing to pass legislation to reduce prison populations.

The Texas experience has allowed Right on Crime to take the JRI policy model to other states where the experience has been replicated.

Finally, the success of Right on Crime has not come about by ignoring or hectoring the beliefs of conservatives. Rather, it is through thoughtful articulation of these beliefs applied to present circumstances that allows for conservatives to reach the once-novel conclusions that the campaign advances. To be certain, even by its own account, Right on Crime still has a difficult path ahead in terms of increasing public safety, lowering taxpayer costs, and increasing victim satisfaction. However, given the milestones achieved during the campaign’s first six years, it is very likely that these successes will continue.

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APPENDIX

LIST OF ACRONYMS

Acronym Full Wording

ACJC Alaska Criminal Justice Commission

ALEC American Legislative Exchange Council

BT Building tender

CORRECTONS Act Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National Systems Act

CPS Coalition for Public Safety

CSCD Community Supervision and Corrections Department

CSG Council of State Governments

FBI Federal Bureau of Investigation

JJDPA Juvenile Justice and Delinquency Prevention Act

JRI Justice Reinvestment Initiative

LaSOC Louisiana Smart on Crime Coalition

NCSL National Conference of State Legislatures

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PEP Prison Entrepreneurship Program

PSPP Public Safety Performance Project

ROC Right on Crime

SAFE Justice Act Safe, Accountable, Fair, Effective Justice Reinvestment Act

SAFP Substance Abuse Felony Probation facility

SPN State Policy Network

TCJC The Texas Criminal Justice Coalition

TDC Texas Department of Corrections

TDCJ Texas Department of Criminal Justice

TIS Truth-in-Sentencing

TJJD Texas Juvenile Justice Department

TJPC Texas Juvenile Probation Commission

TPPF The Texas Public Policy Foundation

TYC Texas Youth Commission

USIAN U.S. Justice Action Network

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