The New Yorker
By: Bill Keller
In the mid-nineteen-eighties, shortly after the convictions of six members of the House of Representatives and one senator in the F.B.I. bribery sting code-named Abscam, one of the bureau’s anti-corruption units turned its attention to the California legislature, where an informant had reported that lawmakers were on the take. Agents posing as representatives of a shrimp-processing company announced plans to build a plant near Sacramento, provided that a state-loan guarantee could be procured. They offered to reward legislators who would help secure their financing. The operation, inevitably, was known as Shrimpscam.
Patrick J. Nolan, an earnest law-and-order conservative representing Glendale and Burbank, was the leader of the Republican minority in the assembly. He had already voted for a bill making the company eligible for the guarantee, but Governor George Deukmejian, who was aware of the sting, had vetoed it. Now one of the agents wanted to meet Nolan to entice him to intercede with Deukmejian. On June 29, 1988, Nolan and a legislative aide, Karin Watson, arrived at a bugged suite in the Sacramento Hyatt Regency, across from the Capitol. They declined the agent’s offer of champagne (it was not yet noon) in favor of Diet Pepsi, admired the view, engaged in some awkward small talk, and left twenty minutes later, with two five-thousand-dollar checks. One was made out to a Republican campaign committee. The other was left blank, apparently to see if Nolan would pocket the money. He filled in the name of a Party PAC.
Pat Nolan now lives outside Washington, D.C., in Leesburg, Virginia. Recently, he rummaged in his basement for a copy of the F.B.I. audiotape of the meeting. (There was a video, but Nolan’s copy seems to have got lost when he moved east, in 1996.) Nothing on the muddy soundtrack, which plays today like an outtake from “American Hustle,” is explicitly transactional, but the agent presses for help in changing the Governor’s mind, and Nolan explains that it would be beneficial for business in general if Republicans could capture a majority in the assembly.
The sting eventually resulted in a dozen indictments, but it took five years, and Karin Watson’s cooperation, for prosecutors to file charges against Nolan. On April 27, 1993, he was indicted on six counts, including racketeering, conspiracy, extortion, and money laundering. Nolan insists that he voted for the loan because the fictional venture promised jobs, and that he took the contributions because that’s how people help elect legislators who see things their way. But Nolan’s lawyers concluded that a public that had recently endured the scandals of Watergate, Abscam, and Iran-Contra would not be sympathetic to a politician’s claim that he was just doing his job. Nolan calculated that, if found guilty, he could be in prison until his young children were in their twenties. So he quit his seat and admitted to one felony count of racketeering in exchange for a sentence of thirty-three months.
Criminal-justice reformers like to say that if a conservative is a liberal who has been mugged, a liberal is a conservative who has served time. Nolan did not emerge from prison any less conservative, but he says he experienced a profound disillusionment, which has led him to play a central role in a cause that is only now finding its moment. These days, it is hard to ignore a rising conservative clamor to rehabilitate the criminal-justice system. Conservatives are as quick as liberals to note that the United States, a country with less than five per cent of the world’s population, houses nearly twenty-five per cent of the world’s prisoners. Some 2.2 million Americans are now incarcerated—about triple the number locked up in the nineteen-eighties, when, in a panic over drugs and urban crime, conservative legislators demanded tougher policies, and liberals who feared being portrayed as weak went along with them. African-Americans are nearly six times as likely as whites to be incarcerated, and Latinos are more than twice as likely. More than forty per cent of released offenders return to prison within three years.
Several Republican Presidential candidates—Rand Paul, Jeb Bush, Rick Perry, and Ted Cruz—have been embraced by Right on Crime, a campaign to promote “successful, conservative solutions” to the punitive excesses of American law and order. 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.
In Congress and the states, conservatives and liberals have found common ground on such issues as cutting back mandatory-minimum sentences; using probation, treatment, and community service as alternatives to prison for low-level crimes; raising the age of juvenile-court jurisdictions; limiting solitary confinement; curtailing the practice of confiscating assets; rewriting the rules of probation and parole to avoid sending offenders back to jail on technicalities; restoring education and job training in prisons; allowing prisoners time off for rehabilitation; and easing the reëntry of those who have served time by expunging some criminal records and by lowering barriers to employment, education, and housing. As David Dagan and Steven M. Teles write, in the Annals of the American Academy of Political and Social Science, “Retrenching the carceral state is becoming as orthodox on the Right as building it was just a few short years ago.” They conclude that this has created a “Nixon goes to China” opportunity to reverse decades of overkill.
This conservative transformation is often portrayed in the media as a novelty, and some progressives regard it as a ploy to cut taxes and turn prisons over to the private corrections industry. Yet it has deep roots and a tangle of motives, one of which is indeed a belief that downsizing prisons promises taxpayers some relief. (Locking up an inmate for a year can cost as much as tuition at a good college.) But for many conservatives, Nolan says, reducing spending is “ancillary.” “It’s human dignity that really motivates us.”
In September, I met Nolan in Washington, D.C., at a German deli downstairs from his office at the American Conservative Union Foundation, where he is the director of the new Center for Criminal Justice Reform. At sixty-five, he is tall and rotund, with a round, amiable face and a thatch of gray-white hair. Since 2011, he has suffered from restricted lung capacity, complicated by a lingering case of Lyme disease, and he uses a portable oxygen tank. But he still works full time, tracking the progress of reforms state by state, drafting op-eds for fellow-conservatives, planning conferences, rallying state legislators by phone, and firing off volleys on Twitter.
There are two main styles of Southern California Republicanism: the home-spun anecdotal optimism of Ronald Reagan and the uneasy conspiratorial resentment of Richard Nixon. Nolan is in the Reagan mold, upbeat and engaging even when he is describing what he regards as the transformative injustice of his life. He grew up on Crenshaw Boulevard in Los Angeles; his father was an accountant, and his mother, he said, “majored in raising kids”—nine of them. By the time he was old enough to have a paper route, the integrated middle-class neighborhood had turned rough. The family was devoutly Catholic, and Nolan remains so.
At Notre Dame High School, he joined the Young Americans for Freedom—he and his friends liked to heckle Jane Fonda at anti-Vietnam War rallies, chanting, “Barbarella bombed, why can’t Nixon?”—and in 1966 he was a volunteer for Reagan’s first gubernatorial campaign. He tried three times to enlist in the Marine officer-training program, but each time he failed the physical, owing to a knee injury suffered when a car knocked him off his bike on his delivery route. After graduating from the University of Southern California and then its law school, he represented white-collar defendants in civil cases for a few years, served part time as a reserve deputy sheriff, and went into politics. By the time of Shrimpscam, he was widely viewed as a potential speaker of the assembly, even a plausible candidate for governor or for the Senate.
“I went to the legislature very pro cop and with a get-tough-on-crime attitude,” Nolan told me. He wanted to reinstate the death penalty, which the Supreme Court had temporarily suspended. He believed that the exclusionary rule, which disallows evidence improperly obtained by the police, had become a loophole that lawyers exploited to allow guilty clients to go free. He excoriated a colleague in the assembly for proposing a law that would extend workers’ compensation to inmates injured in prison labor programs. And he was a leading sponsor of a prison-building boom in the state, which included, to his eventual regret, the Pelican Bay supermax facility, where inmates are kept in long-term solitary.
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.”
By the standards of American incarceration, Nolan had it easy. He served twenty-five months in two prisons that housed the least menacing felons. The Federal Prison Camp at Dublin, near San Francisco, was a compound of former Army barracks surrounded by landscaped flower gardens. There was a small coterie of white-collar criminals, but the majority of the inmates were blacks and Latinos serving time for relatively minor drug convictions. Nolan helped organize religious-study groups, and—to judge by his accounts in an unpublished memoir—he treated his fellow-inmates as a constituency to be charmed. (He still corresponds with some of them.) From prison, Nolan produced a chatty newsletter that his wife, Gail, distributed to some two thousand supporters. He had regular visits from his family and a loyal band of political friends. After ten months, he was transferred to Geiger Corrections Center, near Spokane, where the supervision was even less oppressive. Still, his time in prison exposed him to what he came to see as the cynical cycle of American justice: sweep up young men, mostly from broken families in underprivileged neighborhoods, put them away for a while, send them back onto the streets with no skills, and repeat. To call this a “corrections” system seemed a sour joke.
“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.
Nolan was still an inmate when he ventured into the politics of reform. In 1994, in the California Political Review, he published an attack on that year’s crime bill—President Clinton’s signature contribution to mass incarceration, which earmarked $9.7 billion for prisons, imposed tougher sentences, and, among many punitive provisions, eliminated college grants for prison inmates. Many Republicans turned against the bill, because it also included a ban on assault rifles and funded remedial inner-city programs, such as “midnight basketball.” Nolan’s objections were different: he argued that the bill would bring profits to the prison industry but do little to reduce crime. He wrote, “Above all, conservatives should ask themselves how likely it is that these bloated bureaucracies . . . will turn out to be any less rapacious, irresponsible, or concerned with the rights of ordinary Americans than, say, the IRS, just because they are packaged and marketed under the dishonest label ‘tough on crime.’ ”
The following year, when Congress was reviewing the hundred-to-one disparity in the penalties for crack versus powder cocaine, Nolan used his phone privileges to urge Republican representatives to treat the two drugs equally. “The kid on the bunk above me was doing ten years for crack,” Nolan told me. “There’s essentially no difference” between the two forms of the drug, he said, “but so many blacks were doing absurdly long sentences for crack.” Nolan says that he helped line up support from thirty-four Republican members of the House, but lost half of them when Clinton’s Attorney General, Janet Reno, endorsed the harsher punishments. “How could they let Janet Reno get to their right on drug policy?” he asked.
Unlike most parolees, Nolan had a job waiting for him. Charles Colson, a Nixon White House aide who had become a devout Evangelical Christian shortly before serving seven months in a federal prison for his part in the Watergate scandal, had organized the Prison Fellowship, a network of volunteers who visited inmates and promoted faith as a path back into society’s good graces. When the volunteers reported appalling conditions and a permeating sense of hopelessness in the prisons, Colson decided to launch a political offshoot, called the Justice Fellowship. The idea was to build a grassroots campaign to lobby Congress and state lawmakers for more humane treatment of inmates during and after incarceration, but Colson was so busy running the evangelical network that the effort languished. Colson had heard of Nolan through mutual Republican friends, who portrayed him as equally at ease talking about God and dealing with politicians. So in the spring of 1996, as Nolan was preparing to leave prison, Colson asked him to move to Washington and run the Justice Fellowship. Once there, Nolan realized that a grassroots network was already in place: fifty thousand Prison Fellowship volunteers and a couple of hundred thousand donors.
Their first test came later that year, with a proposal moving through Congress that would have sharply limited the right of inmates to file lawsuits under the First Amendment. Many prosecutors favored the measure as a way to curb nuisance lawsuits, but Nolan argued that it would also inhibit legitimate religious freedom. “You’d get some inmate suing for steak dinners on the grounds that he belonged to the Church of Filet Mignon,” he said. “But you also had wardens who wouldn’t serve kosher meals to Orthodox Jews.” Crosses that Latino prisoners fashioned from plastic trash bags were banned in some prisons as “gang attire.” Nolan and Colson asked their network to contact their legislators and raise the issue at town-hall meetings. Nolan organized a press conference in which a Republican and a Democrat—Senators John Ashcroft and Edward Kennedy—defended the rights of inmates. The proposal died.
Next, Nolan sought to enlist the fellowship in the campaign against prison rape. Studies showed that as many as one inmate in five was the victim of sexual assault, by another inmate or by prison staff. Such attacks, when inmates dared to report them, were dismissed as a hazard of incarceration. “Prison rape was a secular issue, but with moral overtones,” Nolan told me. The direct-mail firm that handled Colson’s fund-raising “didn’t want to touch the issue,” he said. “They thought, Oh, it makes people uncomfortable. It’ll turn people off.” But the volunteers agreed to rally conservative support, and, in conjunction with human-rights organizations and liberal groups, they helped secure the unanimous passage of the Prison Rape Elimination Act, in 2003. Nolan is the first to admit that the law hasn’t come close to eliminating the problem. But it did make the Justice Fellowship a force for reform beyond issues of strictly religious interest. Its members subsequently helped on the passage of the Second Chance Act, which provides federal grants to help released convicts reenter society, and the Fair Sentencing Act, which reduced the disparity—to eighteen to one—between sentences for crack and powder cocaine.
During those years, Nolan discovered a number of prominent right-wing figures who had come to support criminal-justice reform from various directions. Some, like David Keene, the former president of the National Rifle Association, whose son was sentenced to ten years for a road-rage shooting, were, like Colson and Nolan himself, influenced by personal experience. Grover Norquist, an activist famous for extracting no-new-taxes pledges from members of Congress, was attracted to the issue partly by the odor of wasted tax money, and became an early Nolan ally. Richard Viguerie, who refined direct-mail fund-raising in the service of the far right, also came to the campaign early, on moral grounds. (A substantial minority on the right, notably Catholics, have turned against capital punishment. Nolan and Viguerie are among them.) Edwin Meese, President Reagan’s Attorney General, for the most part a classic law-and-order conservative, faulted the system for failing to provide indigent defendants access to adequate legal counsel and opposed the reclassification of minor regulatory violations as felonies. (A favorite conservative talking point is that Texas has eleven felonies related to the harvesting of oysters.) Former House Speaker Newt Gingrich, a co-author of the 1994 Contract with America, with its unforgiving anticrime provisions, told me that he was persuaded to embrace reform because of the high recidivism rates. “It’s just stunningly stupid to have a system that keeps returning people to jail,” he told me.
After George W. Bush was reelected, in 2004, and the Republican majorities in Congress were strengthened, Nolan attended a seminar in Richmond, Virginia, where conservatives debated what to do with their consolidated power. Norquist and Keene separately urged him to pull together the factions of conservatism on justice reform. So he began hosting occasional off-the-record lunches where you might have seen libertarians from the Cato Institute, advocates of judicial restraint from the Federalist Society, social conservatives from the Family Research Council, and hard-core fiscal conservatives like Norquist. Attendees found a unifying theme in the arrogance and the overreach of government and the toll that it took on individual freedom and responsibility. Nolan became, mostly behind the scenes, a trusted broker, strategist, theoretician, fund-raiser, diplomat, and whip. “If Pat says something, it’s kind of the final word,” Viguerie told me.
One place where conservative interests coalesced was the Texas Public Policy Foundation, a free-market think tank based in Austin, which helped convert then Governor Rick Perry from an indiscriminate law-and-order enthusiast to a self-styled apostle of pragmatic reform. In 2007, Perry joined reformers in the state legislature in a plan to cancel a major expansion of the state’s prisons and redirect some of the savings to addiction treatment for low-level drug offenders, as an alternative to incarceration. The prison population dropped sufficiently that Texas closed one facility in 2011 and two more in 2013.
The feat was less impressive than it seemed. When Perry became governor, in 2000, he inherited the largest and fastest-growing prison population in the country, the legacy of a prison-building program under his predecessors Ann Richards and George W. Bush. The state could easily afford to release hundreds of minor offenders without risking a spike in crime. Still, Perry’s example was one that Nolan and others could hold out to politicians who worried about being pilloried as soft on crime. Vikrant Reddy, a former Texas Public Policy Foundation lawyer who is now a criminal-justice fellow at a think tank backed by Charles Koch, said, “This is the ultimate hang-’em-high state. If you say you’ve done these impressive things on prison reform in Vermont, nobody’s really listening. If you say they did it in Texas, then you have a captive audience.”
The next step was to replicate the Texas story in other states. Marc Levin, a conservative lawyer who headed the Texas foundation’s justice-reform operation, came up with a catchy name—Right on Crime—for a new advocacy group set up out of the foundation in 2010 to share policy ideas and mobilize prominent conservatives for reform. Levin and Nolan realized that, instead of building a new coalition of name-brand conservatives for each battle, they could get supporters to sign on to a statement of principles—transparency and accountability, individual liberty, cost-effectiveness, a chance for rehabilitation, limited government, a voice for crime victims, a preference for solutions based on family and community. That way, the signatories’ names could be invoked without having to ask for permission every time.
“Sort of like Henry Ford inventing the assembly line, it allowed us to handle a large number of issues,” Nolan said. Variations on the Texas approach to reducing the prison population have since been adopted in Georgia, South Carolina, Ohio, Kentucky, and Mississippi. “You now have all these conservative and liberal governors touching what used to be a third rail,” said John Malcolm, a former prosecutor who oversees the Edwin Meese III Center for Legal and Judicial Studies, at the Heritage Foundation. Last year in California, Right on Crime, with financing from B. Wayne Hughes, Jr., the son of a storage-locker billionaire, and with Nolan working the phones to legislators in his home state, provided support for Proposition 47, which downgraded minor drug and property crimes to misdemeanors. It passed in November.
Although right and left generally agree on the scale of the problem, they diverge on the question of its causes. The view of many on the left is distilled to its essence by the legal scholar Michelle Alexander in her best-selling 2010 book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Alexander posited that the criminal-justice system as it exists today is the product of the country’s economic and racial history.
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. “It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed,” she wrote. On many days, the news seems to provide evidence for Alexander’s case: racial profiling; stop-and-frisk; the targeted prosecution of drug laws in black and brown communities; the disproportionate arrest, remand, and sentencing of minorities; the xenophobic alarm about immigration; and the quick resort to force by police and corrections officers against citizens of color.
Alexander told me that during the five years that she has been traveling around the country talking about her book she has often found conservatives “more advanced in their thinking” than liberal politicians, who, after many years of having to play tough for voters, “have become comfortable with the criminal-justice system as it is.” Religious conservatives in particular, she said, “really appreciate the moral and spiritual dimensions of mass incarceration.”
As a theory of how we got to this point, Alexander’s view supplies a powerful logic but is of little comfort to advocates of piecemeal reforms, which she regards as “utterly insufficient.” She told me, “Some people who might have spent more than a decade behind bars may spend only a few years. Children who might not otherwise have ever known their parents may have a shot at having relationships with their mother or father, and people may receive additional support—job training or education.” However, she added, “I’m deeply concerned that many people will mistake these reforms for the kind of cultural and institutional transformation that is necessary.” The current bipartisan ferment might improve a few lives, she conceded, but repairing criminal justice requires “a radical restructuring of our society,” potentially driven by “third parties and new political formations” rather than by Republicans or Democrats. She told me, “I’m not enlisting the very people who constructed the system to take charge of now reforming it.”
“Michelle Alexander has gotten a lot of publicity, and a lot of people have been attracted by it,” Nolan said. “But I think it’s counterproductive to go and start off by punching people in the face, saying, ‘You’re part of the white slave-master mentality that has done this.’ ” 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. Prison became the default choice when it should be the last resort. I guess I’m somewhat defensive, because a lot of liberals say that this is a way of making up for the wrong things we did. I think that both hands were on the knife.”
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. Reacting to the death from a crack overdose of Len Bias, a promising Boston Celtics recruit, O’Neill helped push through the 1986 Anti-Drug Abuse Act, which imposed mandatory sentences, asset forfeitures, and the severe sanctions on crack. The 1994 crime bill was introduced by a Delaware liberal, Joe Biden, and championed by Bill Clinton. (In this Presidential campaign, Hillary Clinton can expect to be attacked for her husband’s tough-on-crime expedience—from the right.)
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 crime rate has plateaued at its lowest level in decades, a development variously attributed to the ebbing of the crack epidemic, an improved economy, smarter policing, the aging of the baby boomers, and, at huge expense, mass incarceration. A new generation has come of age in safer cities, and now Democratic officials who dared not endorse less punitive approaches to crime have conservatives to give them political cover. “What I tell conservatives is liberals cannot lead on reforming the criminal-justice system,” Viguerie told me. “And so, if conservatives don’t lead, nothing happens.”
There is a tendency, on both sides, to make ending mass incarceration seem easier than it is. In March, I went to Washington for the Bipartisan Summit on Criminal Justice Reform, hosted by the liberal activist Van Jones, the Democratic consultant Donna Brazile, Gingrich, and Nolan, and attended by several hundred reform enthusiasts. Jones called it “the Woodstock of criminal justice.” The only discordant note I heard came from Senator Cory Booker, the New Jersey Democrat who campaigned as a criminal-justice reformer. One of the sponsors of the summit—a roster that included Koch Industries and the A.C.L.U.—was #cut50, a bipartisan organization that advocates halving the prison population over the next ten years. (Nolan is listed as a partner on the group’s Web site, although he says that thirty per cent is a more realistic goal.) To accomplish such a drastic cut, Booker suggested, would entail releasing not only pot smokers and shoplifters but also people guilty of more serious crimes. He invited the audience to talk about reexamining some offenses now categorized as violent. Nobody seemed inclined to take him up on the offer.
There are whole areas of policy where bipartisan consensus remains far out of reach. Guns, for starters, are untouchable. (Norquist likes to provoke liberals with the creative theory that the crime rate has fallen because more Americans have concealed-carry permits.) For most Republicans, outright legalization of drugs, even marijuana, “is one we can’t touch,” Nolan says. The idea of restoring voting rights to ex-felons, which has the support of Rand Paul and Nolan as well as Bernie Kerik, appeals to many Democrats but terrifies most Republicans. “They have this image of hordes of criminals” flocking to the polls to vote for Democrats, Nolan said. Conservatives tend to look more favorably on privatizing prisons, prison services, and probation, a scheme that liberals view with deep distrust. The death penalty, which divides the right, is not on the shared agenda.
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. The mentally ill now make up a substantial portion of inmates in state prisons and county jails.
“The direction forward is not really clear, because, on the one hand, the right is saying less government, less spending,” Petersilia told me. “And the left is saying we need more investment.” She offers the example of California, which for nearly five years has been under a Supreme Court order to cull the overcrowded prisons that Nolan once helped build. “The success story of downsizing prisons in California is like nothing the nation has ever experienced,” she said. “We have downsized in less than five years twenty-five per cent of all prison populations. But look what is happening at the local, community level, which is that they’ve upsized jails, and they’ve got a homeless population, they’ve got police officers complaining about the mentally ill. We didn’t answer the question: if not prisons, what?”
Nolan agrees about the cost of alternatives: “In each of the Right on Crime states, we have insisted that a large part of the savings be put back into the system.” As for his home state, Nolan says, “we were not a part of that mess.” Nolan thinks that Governor Jerry Brown failed to plan adequate prison alternatives because “he just wanted to get the court off his back.” When conservatives did venture into California, last November, to help pass Proposition 47, the measure required that two-thirds of any money saved be funneled into alternative correctional programs. Nolan said, “Conservatives have insisted that money be plowed into services because we know that just releasing prisoners or diverting them from prisons without services would increase crime.” That is true, but it tends to be relegated to the fine print in conservative reform literature. The headlines promise tremendous savings to taxpayers.
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. But if the bipartisan movement can accomplish the things it agrees on, Nolan has a wish list of additional reforms that he will pitch to conservatives. 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.
And, mindful of the prisoners who have been exonerated while waiting on death row, he would like to end capital punishment. In the last week of May, Nolan was urging Republican state senators in Nebraska to repeal that state’s death penalty, over the governor’s veto. The repeal prevailed without a vote to spare, making Nebraska the first conservative state in four decades to do away with the death penalty. Nolan was jubilant.
“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.”