Monday, January 24, 2022


Criminal justice reform is a subject often associated with the political left, but it doesn’t need to be that way. In fact, there’s a straightforward approach that can help bring more conservatives to the table while at the same time guiding discussions in directions conservatives can support.

In recent years, many of the calls for criminal justice reform have come from the left side of the political spectrum, with some advocates seeking to radically restructure policing and incarceration. Conservatives by and large have found such calls for fundamental change unpersuasive. While acknowledging flaws and inequities in the current system, they have expressed significant concern that such proposals would undermine public safety and reverse the strides in crime reduction of recent decades.

When conservatives have spoken out in favor of criminal justice reform, they frequently have linked calls for change to concerns about the size and expense of our nation’s criminal justice apparatus. In 2018, for example, when Congress was considering changes to certain sentencing and prison practices as part of the First Step Act, conservative commentator Brent Bozell published an article decrying the “bureaucratic mess” of our nation’s criminal justice system and framing support for the proposed reforms as a way to cut back on “mindless big government.” Republican Sen. Rand Paul, one of the most prominent advocates for criminal justice reform on the right, has similarly highlighted the “staggering” cost of prison as a reason to reduce sentence lengths.

Such appeals to limited government and fiscal restraint undoubtedly resonate with many right-of-center Americans — particularly those of a libertarian bent. Perhaps that explains why much of the impulse for criminal justice reform among Republicans in recent years has come from the libertarian wing of the party.

But what about other parts of the conservative coalition? How can advocates make a case for reform in a way that will resonate with the broad range of conservative-minded Americans — from libertarians to social conservatives to law-and-order conservatives to others? Equally important, what unifying principles can be identified to help guide criminal justice reform discussions toward policies conservatives can support? Principles of limited government are essential, to be sure. But there is more.

In a recently published report, the Hatch Center — the policy arm of the Orrin G. Hatch Foundation — has outlined an approach to criminal justice reform that can unite conservatives of all stripes while also identifying many meaningful, commonsense reforms. The report does this by focusing on a topic that conservatives have long recognized is of paramount importance: the family.

For decades, conservatives have led the fight to strengthen and protect the family. Conservatives know how important family is to a person’s formation and how strong family relationships can provide an essential bulwark against the challenges of modern life. A criminal conviction and the consequences that follow can upend or even permanently sever these relationships to the detriment of the convicted individual and their family.

Take the example of Peyton, a young woman from Oregon. Peyton’s father was sent to prison when she was in first grade. Peyton said her father’s incarceration “all but severed” their relationship. They had occasional visits, but sometimes when Peyton saw him, they just sat in silence. “Some days, it hurt too much,” Peyton says, “and I just couldn’t do it.”

Peggy, a caregiver to two teenage girls with an incarcerated father, describes a similar experience. Peggy explains how the girls say things like, “I don’t have my dad anymore. There’s nobody who belongs to me, so, therefore, I don’t belong to anybody.” For the girls, “it’s like being a displaced person, disconnected from anything that looks like the norm.”

Research has consistently documented the detrimental impacts of incarceration on spouses and children. These effects include poorer physical and mental health, lower family income, increased risk of homelessness and poorer educational outcomes. At the same time, research has also consistently shown that one of the strongest determinants of whether an individual who has served time in prison can successfully reenter society and avoid reoffending is the strength of the individual’s family ties.

Centering discussions around both types of family impacts — the impacts on and the impacts of family members of individuals in the criminal justice system — can provide a unifying principle for conservatives when it comes to criminal justice policy. It can also suggest a number of reforms.

First, a family-centered approach to criminal justice policy seeks to leverage the positive impacts of personal relationships. As noted, strong family ties are associated with a reduced risk of recidivism. Family members provide emotional support to help cope with the stresses of reentry and frequently serve as an important source of housing and job leads.

Accordingly, helping individuals in the criminal justice system maintain and strengthen family relationships during and after incarceration should be a priority. Ways to do this include housing prisoners closer to home, reducing the cost of prison phone calls and facilitating video visits for family members unable to make in-person trips.

Second, a family-centered approach to criminal justice policy considers the harmful impacts of a criminal conviction on all affected parties, not just the convicted individual. The most obvious and most serious consequence of a criminal conviction frequently is a term of incarceration.

But incarceration is far from the only consequence. Many federal, state and local laws bar individuals with a criminal record from certain jobs, even when the job has nothing to do with the convicted conduct. Other “collateral consequences” of conviction may include ineligibility for housing or other benefits, as well as loss of a driver’s license if a person is unable to pay required court fees.

These outcomes pose significant hurdles not just for the convicted individual but also for their family members. It goes without saying, of course, that individuals who break the law must face the consequences. But punishment is not an end in itself. There must be a balance — particularly where the punishment impacts third parties. Potential reforms might include requiring that any employment disqualification be tied to the actual criminal conduct, considering whether civil rather than criminal penalties may be appropriate in a broader range of cases, and reconsidering sentencing laws that lead to disproportionately severe punishments.

Third, a family-centered approach to criminal justice policy makes successful reentry a top priority. As disruptive and harmful to family members and children as one stretch in prison may be, even more harmful is a second or third stretch, or worse yet, a continuing cycle of release and reincarceration. Reducing barriers to reentry and helping formerly incarcerated individuals find housing, employment and other necessities is essential.

The Hatch Center’s report goes into greater detail on each of these points, identifying specific proposals that implement their teachings.

Criminal justice reform can and should be a unifying issue for conservatives. That some of the most ardent voices may be on the left, or may advocate changes with which conservatives strongly disagree, should not lead conservatives to cede the issue. Rather, conservatives can and should present their own vision for criminal justice reform, a vision rooted in principles that can unite a broad range of conservative-minded individuals. One such principle is a shared understanding of the importance of the family, and the essential role family impacts play in the criminal justice system.

Aligning reform efforts with the goals of preserving and strengthening family relationships, reducing negative family impacts and bolstering the ability of family members to help their loved ones get back on track (and stay there) can provide a solid framework for conservative criminal justice policy. It’s time to get to work.

• Christopher Bates is a legal fellow at the Orrin G. Hatch Foundation and a visiting scholar at Southern Virginia University. He formerly served as a chief counsel on the Senate Judiciary Committee.

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