Rolling back the reach of America’s “tough on crime” laws was, for many years, a subject that most politicians could at best discuss at a whisper, off the record, in a dark and obscure corner. The crime waves that peaked in the 1990s made the careers of many politicians (especially on the right) who swept into Washington on promises of more jails and longer sentences, and they scarred the remaining Democrats too deeply for them to easily open a potential “soft on crime” flank again. Even as crime collapsed and the mounting toll of mass incarceration came into view in the 20 years that followed, Americans’ continued to believe in an increasingly mythical rise in crime, and political campaigns saw little reason to disabuse them of that notion.
Yet on Thursday, a significant bill reducing mandatory minimum sentences along with other substantial reforms was announced in the Senate. The bill’s press conference was attended by members of the Democratic leadership, Chuck Schumer and Dick Durbin, the Republican leadership, John Cornyn, the conservative insurgency, Mike Lee and Tim Scott, and the next generation of Senate liberals, Cory Booker and Sheldon Whitehouse. Perhaps most importantly the press conference included both the ranking member of the Judiciary Committee, Patrick Leahy (long a reformer), and the committee’s present, Republican, legendarily resistant chairman, Chuck Grassley.
2015 has seen the culmination of years of work in forging a bipartisan coalition around rolling back the worst excesses of mass incarceration and drug war overreach, as the right learned from evangelicals led by Chuck Colson and his successor, Pat Nolan, and Right on Crime’s Mark Levin. Conferences have been held at swanky Washington hotels trumpeting the political progress, and politicians from such opposite ends of the spectrum as Mike Lee of Utah and Dick Durbin of Illinois co-authored reform bills. All the while, however, the specter of Senator Grassley hung over the optimism. Grassley is not part of the new wave of Tea Party Republicans decrying the government’s cruel excesses in the explosion of the carceral state; he is an old-school tough-on-crimer. And Grassley holds the keys to the Senate’s consideration of any crime bill. Without him, more sweeping reforms were doomed to fail; with him, the first real rollback of the mass incarceration era has a real chance at becoming law.
Russell Berman at The Atlantic summarized the resulting compromise well:
The bipartisan proposal would reduce the length of mandatory minimum sentences, and limit them to serious drug felonies and violent crimes. It would ban solitary confinement for juveniles and allow them to apply for parole after a maximum of 20 years, and it would grant judges more flexibility in doling out sentences for a range of crimes. The bill would also bolster re-entry programs in federal prisons aimed at reducing recidivism.
The CORRECTIONS Act is the synthesis of Lee and Durbin’s extensive sentencing reform bill, Cornyn and Whitehouse’s more modest recidivism prevention bill, and Cory Booker’s committment to end solitary confinement for minors, with compromises between all. Grassley’s support came conditioned on the addition of two new mandatory minimum sentences, but they are for comparatively rare federal cases of arms trafficking and interstate domestic violence.
While reformist critics may fear that this bill sweeps up most of the politically attractive low-hanging fruit of helping nonviolent drug offenders that could have been needed to pass more controversial reforms around violent crime, it can also be seen as the signifier of a new era. The vast majority of American prisoners are in state institutions, not federal ones, so most of the work will still have to be done at more local levels. Encouragingly, red-state Republican governors have often been at the forefront of pushing for such reforms, including Rick Perry of Texas and Nathan Deal of Georgia.
A potentially more devastating blow to the encouraging trend criminal justice reforms could be lurking in a few statistical upticks in violent crime in major cities. Most of those are not statistically significant, and nationally any uptick would be following the lowest levels of violent crime in decades. Jesse Walker did a helpful dive into the numbers after a widely-reported New York Times story, and gave ample reason for caution. If a combination of potential reality and political persuasion does spark fears of a return to the bad old days, however, the politics of law and order could threaten to eclipse the decades-in-the-making coalition of compassionate (and conservative) criminal justice reformers. For the present, however, that coalition is moving forward in Congress, and in the states.
The best and most famous study of America, Alexis de Tocqueville’s Democracy in America, was the result of a trip ostensibly taken to study the prisons in the New World in hopes of bringing more humane reforms to the French. Today, one of America’s foremost exceptionalisms can be found in that same prison system: the United States contains 5 percent of the world’s population—and 25 percent of its prisoners.
If Mike Lee and Tim Scott represent the future of conservative thinking on justice, then perhaps the United States can still recover its original exceptionalism, which drew and inspired a young French aristocrat and made the young nation a “shining city on a hill” to be admired, rather than a trap of mass institutionalization to be feared.
Jonathan Coppage is an associate editor of The American Conservative.