Editor’s note: This is the tenth in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform.
On November 16, 2004, two men appeared before the federal district court in Utah for sentencing. One had beaten a woman to death. The other sold drugs.
The first man received 22 years in prison. But it was the second, Weldon Angelos, who received the harsher sentence of 55 years—all because he brought a gun to two drug deals and had more at his home, even though he hadn’t used them. The federal judge who sentenced Angelos called it “unjust, cruel, and even irrational.”
Thanks to mandatory minimum sentences, Angelos’ case, though perhaps more extreme than others, is hardly exceptional. According to the U.S. Sentencing Commission, mandatory minimums caused drug offenders to serve twice the time of those who did not face mandatory minimums. The commission also noted that drug offenders make up half of the prison population, with two thirds of that group facing sentences that have been elongated by mandatory minimums. And half of those mandatory minimum cases involve an addition of 10 years or more.
Besides raising fundamental questions about the justice and fairness of such practices, there is also the question of how effective they are relative to the cost. In 2015, each federal inmate cost $31,977. That year, the federal prison system left taxpayers with a $6.9 billion tab.
The United States is the top incarcerator in the world in terms of its ratio of prisoners to total population, beating out Russia, Iran, China, and Saudi Arabia, according to the Prison Policy Initiative. Yet the United States hardly has the lowest crime rates. It has the 83rd-highest murder rate out of 192 countries listed, according to figures pulled from the UN Office on Drugs and Crime’s International Homicide Statistics database.
“If we’re going to spend $7 billion a year on federal prisons…we should be getting more bang for our buck,” said David Safavian, deputy director of the Center for Criminal Justice Reform at the American Conservative Union Foundation.
If the United States is going to spend so much, Safavian says, then it should be at the bottom of the list in terms of crime rates. That it isn’t, he suggests, is an indicator that incarceration rates do not correlate with public safety. The magnitude of the failure becomes apparent when one also takes into account the $42.8 billion that state governments shelled out on prisons in 2015, dwarfing the $7 billion at the federal level. U.S. prisons thus are yet one more example of the kind of wasteful and ineffective government programs that usually get conservatives fired up.
“We as conservatives are skeptical of big government. We’re skeptical of environmental regulation that is overbroad. We’re skeptical of labor rules that are overbroad,” Safavian said. “Why aren’t we skeptical of an over-concentration of power in the hands of people that can take your life, liberty, or property?”
But now an increasing number of conservatives are changing their thinking, fueling a legislative drive in Congress to tamp down mass incarceration. In the House, these efforts have taken shape in a bill known as the First Step Act, as previously reported by TAC. The Senate is building on the House measure by targeting mandatory minimums and already has the backing of top GOP senators like Chuck Grassley of Iowa and Mike Lee of Utah.
The hope is not only that this will curtail excessive spending and hold government accountable. Conservatives are also moved by family values considerations: children who have one parent incarcerated tend to be more likely to commit crimes, drop out of high school, and struggle to find work. Even children who have both parents at home are at risk of the same behaviors if they go to school where there are a lot of children with incarcerated parents, according to Safavian.
Conservative reformers know they can do all this—and boost public safety—because their ideas have already been tried in Texas, which expanded its drug diversion programs and improved the effectiveness of its probation programs, as TAC previously reported. Rates of recidivism have now fallen and the state saved an estimated $2 billion it would have otherwise had to spend on new prisons—transforming red-state, tough-on-crime Texas into a model for criminal justice reform.
While Texas has flourished in this area, blue states like California have floundered. In August, the Golden State became one of a few to abolish cash bail. But the change—which has yet to even take effect—is already drawing the ire of criminal justice reformers over fears that the new system of risk assessment to determine whether suspects will be held in jail until their trials will merely “institutionalize racial bias,” as Politico reports.
“It has been a liberal issue and an issue on the left for so long, but then you look at states like California where they take whacks at it and you go, ‘Well they definitely messed this one up. So I think we’re going to have to come in and be the adults in the room and get it right,’” said Derek Cohen, the director of Right on Crime, a campaign of the Texas Public Policy Foundation.
The conservative-backed Senate measure—one version of which is named the Sentencing Reform and Correction Act—tamps down on mandatory minimum sentences in four areas, according to Cohen and Safavian:
Additional time for firearms: Under current federal law, merely bringing a gun to a drug deal twice carries a 25-year mandatory minimum. Under the proposal being considered, the minimum would only apply to prior convictions, according to a synopsis by Families Against Mandatory Minimums (FAMM). In other words, if you get arrested, charged, and convicted for running two drug deals where you had a gun in your belt, you would not be eligible for 25 years in prisons—you’d have to have been convicted previously. The change would also be retroactive, benefitting people like Angelos. (In his case, he has already been released, due to a 2016 federal court ruling.)
Enhancement for repeat offenders: Repeat drug offenders currently face a minimum 20 years for a second offense and life without parole for a third drug offense. The bill would reduce those minimums to 25 and 15 years respectively, according to Cohen and Safavian.
Authorizing judges to bypass mandatory minimums: The existing system does allow judges to waive mandatory minimums under a set of specific criteria: when the sentence isn’t in the interest of justice and doesn’t match the crime or the defendant. However, judges cannot use this so-called “safety valve” in cases where a gun is involved. The new rules would allow them to do so, according to FAMM. “That one is just sheer proportionality and making sure that we don’t have these absurd results that make no sense in terms of the underlying crime or the defendant,” Safavian said. “Every crime is unique. Therefore every sentence should reflect the true nature of the crime.”
The disparity between crack and cocaine: In the late 1980s, the sentence for crack cocaine was 100 times that for powdered cocaine, according to Cohen. That means that someone caught with one ounce of crack was penalized as much as someone with 100 ounces—6.25 pounds—of cocaine. In 2010, the ratio was reduced 18 to 1 for new cases. This legislation would make the change retroactive, according to Cohen and Safavian.
The wildly disproportionate penalties for crack and cocaine have created an opportunity to verify some of the claims made by conservative reformers about the cost and ineffectiveness of long sentences. After the 2010 change, the U.S. Sentencing Commission did a study earlier this year comparing the recidivism rates between those serving time under the old system and those who had gone to prison under the 18-to-1 rule. It found no significant difference in the rates.
“What that tells us is that additional duration of penalty didn’t buy us any more public safety,” Safavian said.
And if the experience of Texas is any guide, less prison time may in some instances actually lead to more public safety.