I think people have an intrinsic distaste for illiberal policies. I occasionally catch a glimpse of this distaste and it makes me extremely hopeful.
People are recoiling at President Trump's policy of separating the children of asylum seekers from their families. Jeff Sessions had some fiery, unapologetic rhetoric, but almost everyone else has balked. Sure, there are some "We-are-a-nation-of-laws-and-we-have-to-enforce-them-no-matter-how-deranged-the-implications" bullet-biters out there, but not many.
Another example of this I've noticed is that pro drug war folks will often go out of their way to point out that there aren't many drug users in prison. Those long sentences are saved for dealers. More to the point, low-level dealers aren't often given long sentences of the kind spelled out in minimum sentencing legislation. Now, maybe these drug warriors are simply pushing back against inaccurate claims made by careless drug legalizers and prison reformers; perhaps they are just trying to set the record straight that there are not hundreds of thousands of low-level offenders clogging our prisons. Sure, there are some, but a substantial majority of those people are in prison for something more serious.
By making a big stink about this, drug warriors are ceding an important point: that it would actually be terribly unjust if there were a lot of people in prison for non-violent offenses or low-level drug dealing. After arguing that "No, no, there just aren't a lot of non-violent offenders in prison..." they almost never add "...but there should be!" Some of these guys are fire-and-brimstone law-and-order types, and they sometimes talk a good talk when it comes to defending things like minimum sentencing guidelines. But when presented with the case of actual human beings facing these tough sentences and suffering the consequences, they show some basic human decency and demur.
Some of them might defend minimum sentencing guidelines with the following kind of argument: Perhaps the law should be overly punitive so that prosecutors have leverage over the accused. Getting people to sign a plea deal is easier if you can threaten with a multi-decade sentence, even if the prosecutor actually has little appetite for sending low-level offenders to prison for that long. Maybe the weight of the drugs never gets brought into play in the official charges, perhaps a gun found on the defendant goes away, and the accused gets a few months in jail and "time served." But force us to go to trial, and we will bring the hammer down on you. I think this is a cynical and hypocritical approach to the law and I find it totally despicable, but there's little doubt it gets people to sign more plea deals. And plea deals avoid the expense of a trial and the chance that a guilty person will escape justice. (This is a dangerous line of argument, because innocent people sign plea deals, too. That shouldn't be terribly surprising. Law-abiding folks are even more risk-averse than criminals.) Even someone making this kind of argument is implicitly admitting that it would be pretty terrible if those minimum sentences were actually served by all offenders. It's a pretty weak defense of a law to say, "We never actually enforce that law." This person is basically admitting that enforcing the law would have horrible consequences.
Another example is the pro-life crowd. Most of them don't believe that a woman who gets an abortion should be punished. Donald Trump painfully discovered this during his campaign. (Though I think the conservatives who bashed him for giving "the wrong answer" were being extremely hypocritical.) The "correct" position is that there are penalties for abortion providers but not for the women who get them (as if you can just punish the providers without harming or endangering the patrons...in this case matrons...although that's probably a terrible choice of term, too). I recall a video made by a pro-choice group in which several pro-lifers were asked if there should be a penalty for women who get an abortion, and most were very uncomfortable with the question and said "No." It was presented in the tone of "Look at how stupid these pro-lifers are!" but my actual take-away was that the people in the video had some real nuance and tempered their heart-felt ideology with some equally heart-felt compassion.
Are there other examples? Prior to a supreme court decision in 2003, homosexual behavior was still illegal in some states and there were a lot of rear-guard conservatives (sorry again for the terrible choice of words) who wanted to keep it illegal. But I'll bet the number of people willing to actively prosecute gays was far smaller than the number of people who would tick the "Don't legalize" box on a survey. The thought of having police covertly infiltrate gay communities and conduct sting operations on gays is extremely distasteful, even to people who are nominally against legalizing homosexual behavior.
People are far too flippant about using government power to enforce their stupid culture-war posturing. Maybe you don't particularly like immigrants and you want to prevent large numbers of immigrants from "diluting" American culture (whatever that means). But immigration enforcement in actual practice means ripping children from their mothers' arms and throwing them into filthy holding facilities or (sometimes just as bad) foster homes. Drug law enforcement in actual practice means that those deranged minimum sentences will actually be applied to some people, particularly the ones who dare to inconvenience the prosecutor and demand their constitutional right to a trial. "We as a society" do not simply "decide" that some behaviors will no longer happen. There is no "we" here, and there is no hive-mind called "society" that collectively makes or ratifies these decisions. When a law is passed, it doesn't just sit out there in the ether and compel us to obey it. No, a law stipulates that if certain rules are broken, men with guns will use violence to stop the rule-breakers. There will always be some people who are not compliant, and we need to think a lot harder about whether we are justified in using violence to stop them. The answer might be "yes." It would be silly for me to posit that violence is always wrong, or that the prospect of using violence makes all laws morally suspect. Obviously I'm not saying that. I'm proposing a much lower bar: that there is a moral presumption against violence. Any law (proposed or existing) needs to overcome this moral presumption with some kind of convincing justification.
(By the way, Locked In by John Pfaff really drives home the point about prisons not being full of nonviolent offenders. See here, or better yet read the book. I was a bit puzzled with President Obama's clemency initiative near the end of his presidency, when he seemed to be having trouble finding a low-level, victimless offenders who had simply run afoul of minimum sentencing laws. It makes a lot more sense after reading Locked In. Usually people go to jail after having committed multiple offenses. There are usually aggravating circumstances, like the presence of a gun or the actual use of violence. That makes it easier to understand why he granted clemency to about two thousand people, not tens or hundreds of thousands. Even granting that there were probably a lot of non-violent offenders who were simply passed over by the clemency program's vetting process, truly sympathetic-looking, non-violent offenders were hard to find.)
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