The Conservative Case for Criminal Justice Reform
If conservative politics is to lead a more sensible popular approach to crime and punishment, it cannot do so with unhelpful “soft on crime/tough on crime” rhetoric or mass appeals to popular sentiment about the criminal justice issue of the day. Rather, it must do so through a conservatism grounded in constitutional balance: an appreciation for the tension between the need for order and the claims of liberty, avoiding the vice of impotence in the face of socially harmful conduct but robustly affirming limits to ensure that the government controls itself as well as the people. Conservatives can adhere to their impulse for preserving civil order and controlling the governed through formal institutions and arrangements, yet also rely upon those same forms to limit the government’s prosecutorial and penal reach. … This Article therefore suggests a popular (i.e., non-judge-made) and constitutionalist — but not a populist — approach to creating a more limited and responsible crime and punishment regime.