A Conservative Case for Justice Reform
"The broad idea of a situation where people receive that which they deserve."
Over the last several years of American cultural life the criminal justice system has been at the center of heated and often vitriolic debate. Charges of systemic racism that lead to the very root of the American system have been levied by many on the Left whilst the general Right wing consensus response is mostly encapsulated by "Back the Blue".
It is unfortunate that a conversation that desperately needs to be had in a thorough, measured and vigorous manner has devolved into such a black & white, my team vs. yours, rooting on the "good" guys dynamic.
The full scope and depth of the reasons for the devolvement of this public debate are beyond the scope of this article, but suffice it to say that there is considerable blame to be laid on both sides.
This is why we need to get beyond the banal bifurcation of Republican vs. Democrat and examine the issues as mature adults. Can we do that? There seems to be an awful lot of people in jail for deeply suspect reasons who would deserve such sobriety and seriousness of their fellow citizens. That would be a step towards Justice.
America has a vastly disproportionate amount of it's citizens in prison as compared to any other countries. Yes, like many other categories of dubious distinction; America is # 1. Furthermore, the disparities within the US prison population are heavily skewed towards an overincarceration of African America, then Latino populations which are demographic minorities in the general population, as many are aware. This reality is the primary source of crude oil that fuels the derrick fire that is this current cultural debate.
(For a further explication of the Criminal Justice System disparities see: https://www.sentencingproject.org/publications/un-report-on-racial-disparities/)
It is often the Left, as previously mentioned, that trumpets these facts the loudest, often couched in a grander narrative about the countries insoluble systemic racism and in terms of Critical Race Theory. This is unfortunate for a number of reasons.
First, because the Left is the sole party that seems concerned with the issue of Criminal Justice Reform, echo-chambers are created and thus the touchstone of reality is lost in addressing these issues. Theory progressively detaches from reality when not counter-balanced with rigorous debate, losing connection to bipartisan and popular support which diminishes efficacy of legitimate solutions. Thus leaving the problem predominantly still unaddressed despite raised tensions and profile.
Second is that the Right forfeits much of it's credibility, integrity and potential political popularity by refusing to play the field on this issue. This second reason will be the focus of this article.
First it is important to stress a definitional distinction. Although this may be an quixotic quest, I am attempting in this article to define conservatism in the specifically American sense. This would be juxtaposed to a European conservatism which is strongly associated with monarchy, aristocracy and state sanctioned religion. Conservatism in a modern sense is actually what European political philosophy would define as Liberalism. This is exactly what the American system was founded on and this point was originally made, to my knowledge, by Friedrich Hayek.
So it is in this sense, classical liberalism, that America was founded. Thus, an American conservative is most concerned with conserving the institutions that allow Liberalism to flourish. Liberalism is defined as the social and political system that holds individual liberty to be the foundational proposition above all else. There are other aspects of modern conservatism that critique and differ from Liberalism significantly, the same for the Left, but this is the core set of principles that American conservatives should seek to actually conserve. All else is concentric to this core.
With this definitional understanding, we can now begin to see why conservatives should want to reform the criminal justice system. I'm going to argue that the current state of affairs is profoundly anti-conservative in significant ways. Should conservatives writ large actually address these issues, they would not only be living up to their own principles, they would dramatically increase their own cache with the American public whilst simultaneously robbing the already teetering Democratic party of significant wind from their sails.
A final caveat I will make before making my arguments is that often in addressing these issues both parties' contemporary talking points talk past each other and do not reach substantive analysis of the real issue. What I am trying to do here is simply goad on the conservative movement to reclaim some agency in this conversation in line with their ostensible principles.
So without further ado...
The first reason that conservatives should be concerned with reforming the CJS is that in it's current practice it is extremely un-American in the sense that Americans are not treated equal under the law. The overlap between poor and minority people in the legal system that have their rights abused should concern any US citizen who genuinely cares about the country they live in. The level of abuse in the system creates a vacuum of moral decay that ripples throughout it's entirety. It is no wonder that in proceeding with the promulgation of the Drug War, the largest apparatus to erode civil liberties of all Americans was created in an Orwellian fashion just a few decades later - namely the Patriot Act and the disparate alphabet soup agencies of it's progeny post 9/11. Despotism breeds despotism. If we can unjustly over-police and incarcerate our own citizens for drugs, why can't we do it for terrorism? The groundwork for the excesses of the Patriot Act was laid during the War on Drugs.
On balance & within context, the Drug War and Patriot Act do have their particular logic and utility. But these only go so far and the current iterations of the bureaucratic institutions that put into practice these legislative concepts have wrought disaster for our CJS which undergirds the entire apparatus of the civil liberties that America was founded on.
Within the context of the Drug War, there are multiple arguments against it that hold true to genuine conservative values. The values that promulgate the Drug War and massive incarceration born out of it are antithetical to these arguments.
Chiefly, it violates the principles of Liberalism to incarcerate millions of adults for decisions that many states now openly hold are not remotely criminal. In no way is Marijuana dangerous from a personal stand point, or if it is, then it is without a doubt less dangerous than alcohol. Given this, it is absolutely preposterous that it is still illegal. Furthermore it is heinous that so many lives were derailed in the Drug War due to the criminalization of this predominantly innocuous plant. The bottom line is from a civil liberties perspective, drug use and it's consequences should be left to the individual and the voluntary associations in the society to deal with any negative consequences. The governments monopoly on violence should only come into play when someone violates another citizens rights.
Because of this protracted, decades long, war on it's own citizenry Americans are now much more likely to have their rights fundamentally violated. This is an assault on conservatism definitionally. In war civil rights are significantly eroded, anywhere in the world. Even close to home there are famous examples from our own history. Lincolns suspension of Habeus Corpus and FDR's internment of hundreds of thousands of Americans of Japanese descent are prime examples. This should infuriate any conservative who claims they are genuinely concerned with civil liberties. The results of this war have been the prolonged attack against American citizens and their rights, as well as an arms race to militarize the police in order to execute this blatant war. This, by definition, is a massive expansion of government, that once again should be blatantly obvious to genuine conservatives, is a massive violation of the principle of limited government.
This violation of our fundamental principles simultaneously diminishes our credibility abroad whilst providing fodder for our foreign enemies' propaganda. It is much more difficult to claim America is the arsenal of genuine Liberal Democracy when both domestically and abroad we've set up draconian police states. Both domestically and abroad, the cycle of abuse creating extreme deprivation that leads to violence has played out in both the War on Drugs and Terror. Civil liberties, and more importantly, real people that those rights are supposed to protect, are the primary victims.
The second reason for a conservative movement for CJS reform is fiscal responsibility, which dovetails exceedingly well with the previous principle of limited government. Less government, less taxes. The War on Drugs, the militarized police state and the bloated, inept prison system all cost the taxpayer a lot of money.
( See: https://interrogatingjustice.org/prisons/annual-prison-costs-budgets/ )
It is asinine to consider oneself a conservative and thus in favor of small government whilst simultaneously supporting the drug war. Not only is it wrong and inconsistent in principle, but one is directly funding the erosion of one's own liberty.
Lastly, a third reason for Criminal Justice System reform being in line with conservative principles is that the current system is anti-spiritual. The American system was birthed out of the Judeo-Christian tradition that birthed the Enlightenment. In the words of Peter Viereck, conservatism is "the political secularization of the doctrine of original sin". If we take this premise to be true or at least contain a substantial proportion of truth, then a prison system that is highly punitive and abusive to its inhabitants should deeply bother someone of a religious disposition.
Prisons are notoriously brutal places where violent, traumatized men are shunted away from the succor of society, are robbed of their individual liberty to pursue the fruition of their full potential and are trapped in an environment rife with violence and scarcity. Yet, if one were to truly believe in the doctrine of original sin, then one would perhaps come to the conclusion that the fallenness in man would be able to be redeemed, just as Jesus did for all of mankind.
Why would so many people who are ostensibly believers in this moral proposition and benefit from its spiritual beneficence in their own lives eschew the very same principle in an institutionalized setting? The absence of this moral charity in effect creates a literal hellish environment, for both the prisoners and the guards, given the dramatic lack of compassion for the human beings within this system.
The current system is entirely incompatible with any sense of Christian charity. It is entirely punitive, especially with aspects of the system such as minimum sentencing and the insanity of the criminalization of drug addiction. Spiritual afflictions are being dealt with on the political level. This harms everyone involved on a spiritual and physical level. It is fundamentally not conservative of any sense of Judeo-Christian redemption or a merciful God.
I hope in this article I've given you firm ground with which to stand on and further consider how the Drug War and the criminal justice system we have currently is totally inconsistent with the ideals upon which this nation was founded and thus something conservatives should care deeply about if they wish to live up to those ideals. The few reasons I've given are by no means exhaustive but they do seem to be blatantly ignored.
On a strategic level, it would be a tremendous boon for Republicans to adopt & transfer some of this consistency with their principles into their politics. It would enable them to kick the last chair leg out from under a Democratic party that is totally floundering. A significant impediment holding back numerous intelligent independents and voting Democrats to voting Republican is the attraction to the moral high ground the Democrats love to pretend they command. Unfortunately, they do on this subject if the Republicans do not heed the call of their own principles and do the hard work to address these wicked issues. Yet it is quite possible and furthermore, they face a continuance in institutional decay and ineptitude if they don't.