Right on Crime: Conservative Reform in the Era of Mass Imprisonment 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 By 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. i 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. ii 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. iii COPYRIGHT NOTICE © by Derek Cohen iv This dissertation is lovingly dedicated to my son, Aleister. v 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. vi 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. vii 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