Shutting down mass incarceration requires building more political capital

In this reflection, I’ll make an argument for funding local campaigns in order to build sufficient power to tackle mass incarceration at national scale. I argue that because we need a lot of political capital in order to pass and implement legislation, we need to invest in building that capital from the ground up. Otherwise, we risk achieving hollow wins. One of the key concepts in this piece is the “inside game” – see my SSIR article for some context. In short, an inside game approach means to work from within government or other dominant structures, leveraging proximity to power and using expert knowledge to effect top-down change.  

Note: I hesitated before posting this piece, because political theory isn’t my area and what I’m saying may be painfully obvious to some readers. I decided to go ahead because I have seen a lot of work that doesn’t seem to be taking these concepts into account. If you know of other writing that’s on point here, I’d love to learn about it - please drop that in the comments. One friendly reader already shared that the concept of “governmentality” could be useful to account for here. I checked it out and I think it’s more sophisticated than I want to go, though I appreciate the guidance for further thinking!

What do I mean by political capital? It’s a term with a range of definitions. For my purposes, it’s this: an advocate walking into a lawmaker or other power-holder’s office can’t, on their own, offer any political upside. They need something behind them - an organized voting block, demonstrated influence over powerful endorsers (who in turn influence voters), a political movement in the streets, influence over major donors who will spend on the election (which itself only buys potential outreach to voters) - that is substantial enough to impact the political fortune of the person they are pushing (either by promising to help them or promising to hurt them). This credible capacity to create an upside or a downside for the power-holder is political capital.   

If you come to play in the inside game, and you want to create something new that goes against the grain of what those in government or at powerful institutions are already inclined to do, you need to have political capital to spend that is powerful enough to match the venue of the inside game you’re playing (city, county, state, federal, etc). Achieving an affirmative win (such as passing a good bill or implementing a transformative new policy) usually requires more capital than stopping a bad one (because there are so many ways to kill a bill or interfere with implementation, it’s an easier task). If you don’t have sufficient capital to force an outcome in a particular venue, then you’re only going to accomplish things that are in the interest of the inside game players you’re dealing with.  

This concept plays out in a number of ways, not just when trying to pass a policy. For example, if inside game players seek out a social change leader and invite them to meet or speak alongside them, it’s because they see a political upside to associating with that leader. That means the leader already has some capital.  Spending time with the inside game player (such as a senator) does not build capital – as Rashad Robinson persuasively argues, we must not confuse presence with power. On the contrary: when on the inside game turf, the outside game player cannot gain capital/power. They can only spend it (to get a win) or give it away.    

To state my thesis in the strongest terms: the inside game is where one goes to spend political capital. You never gain any power/capital in the inside game; you only spend. Political capital is built on the outside. And if you don’t have enough to spend, you will become fodder for the inside gamer’s agenda. That may be fine for players who agree with the current agenda, but is not a good option for players who are seeking to change the agenda. The effort will be subject to the whims and self interests of current power-holders and those who influence them, with no leverage to force wayward power-holders to get in line with reform-oriented ones. You won’t succeed in pushing them to change anything fundamental about what they’re doing, and they will in fact use you and your assets as political currency in the process. 

Under these conditions, if a bill does happen to pass, we may expect to see a policy that claims to make change, but has been so hollowed out or hobbled by successful lobbying by existing power structures (such as the private prison industry, the judicial council, corrections guards association, etc), that it is ultimately regressive. For example a major bill could pass whose main subject seems really positive, like “eliminating mandatory minimums.” But at the last minute, interested parties include a lot of language that limits that application to a tiny group of people (or zero people). 

And, if by some chance a coalition gets past the legislative gatekeepers and passes a strong bill (you’d be surprised how often legislators don’t read the bills, which can lead to this scenario), but hasn’t built a strong enough public wave of support to carry the bill through implementation and media scrutiny, they will most likely face a serious rollback fight. Or, a great policy reform could pass with strong language throughout, and it avoids a rollback fight, but the government turns implementation over to regressive vendors for service delivery, and they botch it.  

In other words, there are a lot of ways for things to go wrong when subject to the interests and whims of current power holders. 

If you accept this reasoning, then a few things follow: 

1. Before trying to achieve a goal by engaging the inside game at any level (whether the village, town, city, major county, state, federal, etc), it’s a good idea to assess how much capital you have, to understand the nature of your power (or lack thereof). How do we assess? Professor Hahrie Han has written some great work on this subject. The simplest answer is to ask, what leverage do we have over this power holder? If they don’t do what we want, can we unelect them or otherwise really make them pay?  

2. If you don’t have enough power to make resistance to your efforts politically costly, for example by organizing voters and raising money to unseat opponents in future elections , then you have insufficient capital to force electeds to go against the grain.

3. It’s a waste of your resources to aim to achieve wins by playing the inside game when you don’t have enough capital to play the game on your terms.   

How does this apply to work on the criminal legal system? 

My years of criminal legal policy experience have given me a front row seat to these dynamics. In most places, the criminal legal reform movement has not yet built a statewide or national demand for change to cut the number of people in prison and invest in safety priorities that benefit the most impacted communities. Accordingly, most elected officials across the country do not yet feel that their political career depends on taking good votes on these issues, and other power-holders are not afraid that failure to implement transformative policy reforms will make them a target. This creates a narrow terrain for policy action, and creates the danger of passing harmful policies (through forced concessions). Organizers in some places are starting to flex more power, though there’s a way to go – Los Angeles, New Orleans, and St. Louis are interesting examples. 

While things may be constrained now, I see signs that the political weather is shifting. For example, we see increasing national attention on the horrors, racism, and wastefulness of mass incarceration. Many more people view the criminal legal system with a critical eye than a decade ago. Young people in particular place mass incarceration at the top of their list of concerns when polled. But increased attention is insufficient. We will need to see national organizing and electoral infrastructure focused on making this an issue lawmakers can’t ignore, plus sustained public demonstrations by groups across society (veterans, families, students, churches, etc, with leadership from directly impacted people), which combine to forge a sense of national crisis. Until a lot more elected politicians worry about losing their jobs if they do the wrong thing on this issue, we are at a disadvantage. 

Accordingly, it’s a good idea to invest substantial resources in local and state efforts in jurisdictions where enough potential voters are agitating for change that inside game actors recognize that it is in their interest to take action. There are exciting efforts happening at the ground level across the country, yet they need more resources to scale. Through state and local campaigns, movement leaders are building towards more tightly organized interests, pursuing alignment on what reform looks like and does not, and enforcing consistent electoral consequences for going against reform. 

What this means for funding

Historically, a disproportionate amount of funding in the criminal legal reform space has gone towards the inside game, while people and organizations working to build outside pressure have struggled due to lack of funding. Inside game work is expensive - the personnel includes a lot of lawyers (I was one). All of it is necessary, and I don’t mean to suggest that inside game work in criminal justice is over funded. But, if we recognize that inside game work alone will not be sufficient to win, then that suggests a commensurate amount of additional funding needs to flow to work by outside groups that builds political capital (I commissioned a report on this topic a few years ago). 

Note: This is not quite the same as funding “pressure,” as it’s usually understood, as many confuse “being loud” with “pressure.” If you’re not building enough political capital to constitute a political threat, then the “pressure” is a mirage.  

Investments in winning campaigns at the local and state levels, where the positive effects of change are most strongly felt and where emerging leadership is tested and trained, can begin to build the political momentum and voting base (aka political capital) necessary to win at greater scale. Wins on the state level can shift national perceptions of what is possible/desirable/feasible at the national level, to prepare the field for bigger pushes in the future.  

For these reasons, in my funding recommendations to donors, I’ve focused a lot of energy and resources on building political capital on the ground in key jurisdictions, through a combination of organizing, electoral, and narrative investments. Strategic, principled organizations led by directly impacted people are at the core of this effort, providing leadership to a wider band of organizations and members of the public that want to work towards change. Wins beget wins, and proving that voters care about these issues and are willing to prioritize them is very motivating for elected officials. Here are two examples of groups doing this well: 

1. Justice LA, a coalition of organizations in Los Angeles anchored by Dignity and Power Now, which has made demands on the county of Los Angeles that it has backed up with a serious organizing ground game, electoral work, and inserting people who are accountable to the base inside the bureaucracy. They’ve won the cancellation of a $3 billion jail and secured an agreement by the county to implement a major alternatives to incarceration plan. Today, elected officials in LA know they can't pass or kill criminal justice bills, or backtrack on past promises, without facing consequences from JusticeLA.

2. Voice of the Experienced, based in New Orleans, led by formerly incarcerated people who organize people inside prisons to educate and push their families to vote in key races, while organizing communities on the outside up and down the state. They’ve run significant ground game programs in the DA race, the Sheriff’s race, the Governor’s race, judicial races, and many more, which has positioned them to demand and achieve local and statewide legislative reforms. 

These groups understand power (political, relational, social, institutional, etc), and they build and spend their political capital strategically, thinking many moves ahead. They are principled but not strident. They have a deep connection to their base, and have earned the trust of people on the ground as they enter the halls of power. Investing in growing the political capital of groups like these is a key component in a multi-year effort to win national change.