It's no secret Left and Right can't agree on much these days. Red and blue states are hurtling in opposite directions on issues from taxes to gay marriage. In Washington, congressional Republicans and President Obama are so polarized that it's considered a triumph when they can keep the government open.
Yet one issue is conspicuously moving in the opposite direction: criminal-justice reform. From 2009 through 2013, more than 30 states passed laws reducing the penalties for drug crimes—a list that includes not only Democratic-leaning places such as Massachusetts and Hawaii but also reliably Republican states such as South Carolina and Oklahoma. Texas has instituted so many reforms to reduce its inmate population that in 2011, for the first time ever, it closed a prison.
Meanwhile, in Washington, the Senate in May will take up major sentencing-reform legislation, and the bill's sponsors include the unlikely quartet of Democrat Dick Durbin and Republicans Mike Lee, Ted Cruz, and Rand Paul. As revealingly, Republicans who have repeatedly accused President Obama of abusing his executive authority have uttered hardly a peep over the Justice Department's unprecedented recent initiative to encourage nonviolent prisoners sentenced under rigid earlier mandatory-minimum sentences to seek executive clemency.
For those who have watched national politics long enough, the idea that criminal justice could be a point of political convergence is astonishing. From the late 1960s through the 1990s, few issues in American politics were as incendiary—or did more to shatter the New Deal Democratic coalition and drive blue-collar whites toward the Republican Party. That process probably peaked in the 1988 presidential race, when the soft-on-crime label helped to doom Democratic nominee Michael Dukakis, who could convincingly defend neither his opposition to the death penalty nor his support for the Massachusetts prison furlough program that set free Willie Horton, a convicted murderer who then committed rape after failing to return from a pass.
In this climate, laws that imposed mandatory minimum sentences, even for nonviolent drug crimes, or otherwise limited judges' discretion (such as the "three-strikes" law that California's Legislature and voters approved in 1994) swept the states. The dialogue began to shift with the passage of a 1994 federal crime bill under Bill Clinton that further toughened enforcement but also sought balance by expanding prevention efforts (such as programs for at-risk teens). Yet even that debate still split mostly along traditional left-right lines. The sort of ideological blurring that has seen outgoing Texas Gov. Rick Perry, ordinarily a north star of conservative positioning, become a passionate evangelist for prison reform remained unimaginable in those years.
What's changed the political equation on crime since then? The most important factor is the decline in the crime rate. After surging through the 1980s as the crack epidemic crested, the violent crime rate has fallen almost every year since 1993 and now stands at only about half of what it was then, according to FBI figures. (A separate Bureau of Justice Statistics crime survey shows the violent-crime rate ticking back up over the past two years but still down about two-thirds from its 1993 level.) "We have an incredible opportunity for change because crime is down," says Michael S. Romano, a lecturer at Stanford University Law School.
Simultaneously, shifts inside the GOP drained some of the partisan venom from these issues. During a panel discussion Romano moderated at the Milken Institute Global Conference in Los Angeles this week, Van Jones, a community and Democratic activist working on these issues, pointed to three distinct strains of conservative leaders who are embracing reform: fiscal conservatives like Perry frustrated with the swelling price of incarceration (which will cost the states $40 billion this year); libertarians like Lee and Paul "concerned about excessive government power"; and religious conservatives, drawn to the possibility of redemption.
With more conservative partners available, fruitful cross-ideological partnerships to reduce incarceration rates, like the Durbin-Lee legislation, are sprouting. Another example was Proposition 36—a 2012 California ballot initiative to relax the three-strikes law—which was designed by Steve Cooley, then the Republican district attorney for Los Angeles County, and Romano, who was advising the NAACP Legal Defense Fund. Voters approved that measure overwhelmingly, allowing roughly 3,500 nonviolent prisoners sentenced to life under the law to petition a court for relief. About 1,600 have since been released, and their recidivism rate has been only 1.3 percent, compared with about 30 percent for all other inmates released over that period, according to a new study from the Three Strikes Project, which Romano directs.
This Left-Right convergence doesn't include everyone: House Republicans have shrugged at the Senate's sentencing reform. Nor does it point toward simply emptying the prisons. As Romano accurately noted during the panel discussion, the same low-income and minority communities suffering most from elevated incarceration rates also benefit most from falling crime rates. But the political space created by the bipartisan interest in reform is allowing elected officials in both parties to make nuanced judgments about how best to reduce crime without bloating prisons. Imagine if the political climate allowed them to behave that rationally on the country's other big challenges.
CORRECTION: An earlier version of this story misstated Michael S. Romano's title. He is a lecturer at Stanford Law School.
This article appears in the May 3, 2014 edition of National Journal Magazine as Incarceration Nation.
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