It’s taken decades and millions of lives, but elite opinion is starting to move against mass incarceration. The New Yorker and the New York Review of Books ran detailed exposés on the scale and violence of the penal state. Conservative leaders like Grover Norquist have said that mass incarceration violates the principles of “fiscal responsibility, accountability, and limited government,” while GOP darlings like Mitch Daniels have tried to take the lead in state reform. Soon the common wisdom will shift from “we need to get tough on crime” to “we jail too many people for too long for the wrong reasons.”

The next question is what to do about it, and here the answers are harder. There are those that think that it’ll be fairly easy — follow European examples and decriminalize drugs, for instance. Some, like public policy professor Mark Kleiman, believe we can change punishment techniques to have both less crime and less incarceration. There are others that think this will be difficult, requiring liberals to reassess their commitment to less harsh punishment and society as a whole to live with more crime. Even then, reformers will have to deal with powerful incumbent interests like prison guard unions and private prison lobbyists. Still other groups listen to liberals saying the phrase “prison crisis” and hear “prison opportunity.” Conservative policy groups like ALEC want to reduce prison populations with privatized solutions, such as having private parole boards bid to insure prisoners for release.

What all of these approaches take for granted is that government policy runs downhill. We elect leaders, those leaders debate and legislate within a set of institutional frameworks, and the final product is something called “policy.” Hence we can take the result called “criminal justice policy” off the shelf, rewrite the rules and replace it.