Flawed Coalitions and the Politics of Crime

INTRODUCTION"The American people are crying out for bipartisanship and real solutions to the challenges we face . . . ."- Congressman Charles F. Bass1"Although there is no progress without change, not all change is progress."- John Wooden, Former UCLA Basketball Coach2Bipartisanship can be dangerous. In the late 1970s, liberals and conservatives had vastly different objectives for criminal justice reform.3 Yet despite little agreement about the outcomes they hoped to achieve, the two sides united to discard two centuries of discretionary federal sentencing practice and ushered in an era of fixed guidelines that would reshape the criminal justice landscape.4 Unfortunately for liberals, the guideline regime established by the Sentencing Reform Act5 ("the Act") ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act's liberal supporters.6 The fact that liberals undermined many of their long-term interests by cooperating with conservatives raises two foundational questions: why were liberals' expectations for sentencing reform so misguided, and were the liberals irrational to ally themselves with parties that did not share their long-term goals? This Article examines whether cultural cognition theory can provide some clues as to why opposing parties might form ill-conceived coalitions when their interests diverge.Some of the most fiercely contested policy disputes can be reduced to basic empirical questions. Whether guns enhance or reduce public safety7 or whether the death penalty deters or increases crime8 can be measured objectively. But researchers have shown that, despite their factual nature, these disputes are not simply resolved by further empirical study.9 Rather, scholars suggest that a particular cognitive bias-cultural cognition-explains why intensely partisan conflicts persist even when the sides share the same long-term goals.10 Cultural cognition describes individuals' tendency "to conform their perceptions of risk and other [factual beliefs] to their cultural worldviews."11 Cultural cognition scholars argue that it is differences in parties' cultural perspectives that drive political conflict over empirical policy questions.But while a generation of scholarship has documented ways that cultural cognition fosters disagreement where parties agree on desired outcomes, no commentator has explored the opposite phenomenon: whether cultural cognition may foster agreement where, in fact, citizens and policymakers sharply disagree on the outcome. This Article argues that the same cultural biases that foment conflict among parties that share similar goals may also mask substantive disagreements among parties that should never have collaborated in the first place. In so doing, this Article identifies three conditions where "culturally motivated cognition"12 may promote flawed coalitions: (1) when the parties possess incompatible long-term goals; (2) when powerful cultural cues are embedded in the proposed policy; and (3) when the parties delegate future resolution of contentious aspects of the policy to third parties. The politics of crime are particularly likely to give rise to these three conditions, where legislatures frequently delegate contentious value-laden policies of rehabilitation and punishment to agencies and judges.Using the reform effort that led to the federal sentencing guidelines and the contemporary movement to establish criminal "problem-solving courts,"13 this Article demonstrates how, in some cases, cultural cognition may dangerously frustrate the goals of citizens, lawmakers, and judges. As set forth below, the guideline regime established by the Federal Sentencing Reform Act possessed all of the hallmarks of a false coalition: antithetical long-term criminal justice goals, powerful social cues embedded in the values of criminal sentencing, and broad delegations of power to an independent commission. …