A former law-and-order conservative takes a lead on criminal-justice reform.
In February, the American Conservative Union’s Conservative Political Action Conference, which serves as an audition for right-wing Presidential aspirants, featured three panels on criminal-justice reform, including one called Prosecutors Gone Wild. Bernard Kerik, who was Rudolph Giuliani’s police commissioner and served three years in prison for tax fraud and other crimes, now promotes an agenda of reforms, including voting rights for ex-felons. The libertarian billionaires Charles and David Koch are donating money to the National Association of Criminal Defense Lawyers, to help insure that indigent defendants get competent legal representation, and they are co-sponsoring conferences on judicial reform with the American Civil Liberties Union.
.. The F.B.I. sting, he says, dispelled his unconditional faith in law enforcement. In Nolan’s telling of it, trophy-hunting agents browbeat his aides and his campaign supporters to build a case against him, leaking tidbits to the press in the hope of breaking his resolve. The prosecutor loaded the charge sheet so heavily that Nolan concluded that he couldn’t risk going before a jury. Like roughly ninety-five per cent of people convicted in America, he pleaded guilty and took a lesser sentence rather than take his chances at trial. He began to wonder how many of the people he had dismissed as bad guys had simply succumbed to prosecutorial bullying. He said, “I saw that the F.B.I. and the government prosecutors weren’t interested in the truth, and that was a shock to me.”
.. “I had assumed they did all they could to help prepare the guys to return to society and make a better life,” Nolan told me. “But they were just warehousing them.” There was a pervasive sense of defeat. “The implication is: you’re worthless, you come from nothing, you are nothing, you’ll never be anything.” He added that when prisoners were released the guards would say, “See you in a few months.”
He was surprised, too, at the number of elderly and infirm inmates. In his memoir, he wrote that “incarcerating people who aren’t a physical threat to society is expensive and counter-productive”—something that “only a nation that is rich and vindictive” would do.
.. The fact that nearly a third of black men in this country are destined to spend time in jail or prison, Alexander argued, cannot be explained as simply a society defending itself against urban predators. In her view, Nixon’s tough-on-crime agenda and Reagan’s escalation of the war on drugs were aimed, consciously or not, at halting the advances of the civil-rights movement and perpetuating the neglect of the underclass. While race has influenced the administration of justice in this country from its beginning, she says, since the nineteen-eighties mass incarceration has decimated minority neighborhoods to the extent that it has become a malign form of containment.
.. On the right, the excesses of the system are most often explained as the result of too much government coddling and a breakdown of families, resulting in a surge of crime and a corresponding rise in public alarm. The war on drugs and the ensuing explosion of the prison population, many conservatives argue, were not acts of racism but responses to legitimate fears. But Nolan says, “Our rhetoric helped grow the climate in which the government could overreach.
.. Nixon and Reagan—and the 1988 campaign of George H. W. Bush, with the infamous Willie Horton TV ad—tapped a vein of white anxiety, but liberals were co-architects of the current situation. The “war on drugs” had no more outspoken champion than the liberal Massachusetts Democrat and House Speaker Thomas P. O’Neill, Jr.
.. The year that Clinton signed that bill, thirty-seven per cent of Americans identified crime as the nation’s most important problem. By 2012, the number was two per cent.
.. The most significant question is whether conservatives are prepared to face the cost of the remedies, from in-prison education and job training to more robust probationary supervision and drug and mental-health treatment. Joan Petersilia, a criminologist who teaches at the Stanford Law School, points to the last great American exercise in decarceration, half a century ago: President Kennedy’s Community Mental Health Act, which aimed to reduce by half the number of patients in state mental hospitals. The promised alternatives—hundreds of community care facilities—were never fully funded, and thousands of deeply troubled people were liberated into homelessness.
.. Nolan has another worry: that one sensational crime, or a spike in the crime rate, or the distraction of more polarizing issues could send Republicans and Democrats back to their corners. “We’ve all said we’re one bad incident away from having this erode on us,” he said.
.. He would like to see abusive prosecutors lose their licenses. He would require the police to videotape interrogations from beginning to end, not just a confession that may have been improperly extracted.
.. “I think the Nebraska vote is a pivot point,” he e-mailed me. “You can’t get more red than Nebraska, and the cooperation of flinty conservatives and urban blacks was unstoppable. I think they really enjoyed working together and finding common ground. That is the experience that I have had as well.” In his sign-off, he turned to Scripture: “The lamb and the lion shall lie down together.”