This section discusses the various judicial, legislative and legal strategies the Right uses to maintain and strengthen a conservative criminal justice and legal system.
The Right has capitalized on a variety of methods to secure support for its ideas and programs. This process, commonly known as "building infrastructure," has developed over the past 25 years to create an impressive web of supports that buttress a right-wing agenda. This section addresses the structural elements that support the Right's criminal justice agenda.
The most common method of codifying political ideas is to secure the successful passage of supportive legislation. A surefire way to do this is to gain strength in state and federal legislative bodies. The passage of laws like Truth in Sentencing statutes and the USA PATRIOT Act illustrates the Right's political power in creating harsher penalties and compromised civil rights in the name of public safety by mobilizing majorities of legislators.
Another successful approach has been to have conservatively dominated legislatures enact laws that disenfranchise blocs of voters. According to the Sentencing Project's 1998 report, "Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States," the racial impact of laws that prevent convicted felons from voting is enormous. 13% of African American men cannot vote because of these laws, and in six states, mostly in the South, over 25% of African American men are disenfranchised. In all, 3.9 million U.S. citizens were denied the right to vote in 1998.1 Undoubtedly it was even greater in 2004.
Presenting conservative ideas through voter referenda has proved successful for the Right. The eleven marriage referenda that passed in 2004 are excellent examples. In the criminal justice arena, another example is the California anti-youth referendum Proposition 21 which passed in 2000 expanding punitive penalties against minor offenders. In 2004, again in California, a progressive initiative to ease the effects of the "three strikes law" by limiting its reach only to those convicted of violent crimes was defeated.
A more under-the-radar method has been to create an organization that simultaneously provides model legislation to busy legislators and lobbying opportunities for business interests that stand to gain particular legislation. Alan Greenblatt's article, "What Makes ALEC Smart?" which is included in this section, describes the American Legislative Exchange Council's history and influence. Conservative think tanks, both at the national and state levels, also influence legislation through their publications, networks and lobbying efforts.
A fourth approach is to influence legal thought on the bench, at law schools, and among influential lawyers. The Institute for Democracy Studies has explained the workings of The Federalist Society, an organization with a mission to "reorder priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law" by reaching out to lawyers, judges and law professors.
Pages 227-240 of Defending Justice, edited by Palak Shah