The Conservative Case for Criminal Justice Reform
I’ll never forget when I first began to appreciate the magnitude of this problem. It was 2004; I was working in the U.S. Attorney’s Office in Utah. In some cases I witnessed judges forced by federal law to impose punishments that did not fit the crime—first-time offenders sometimes being locked up for longer than murderers and rapists.
These were real people—with children, and spouses, and dreams for a better life. Yet in too many cases the so-called “system” that was supposed to correct their mistakes only compounded them. This “system” wasn’t just wasting money—it was wasting lives.
So when I got to the Senate and was assigned to the Judiciary Committee, I started looking for partners, on the right and the left, who shared my concerns and commitment to reform. Until recently, progress was slow.
But more and more today, from Capitol Hill to the campaign trail, support for criminal justice reform is cropping up everywhere. All of the most serious candidates in the Republican presidential field have made statements or speeches supporting the reform effort.
Then there’s the Democratic frontrunner, whose website declares, “We must reform our criminal justice system to ensure fairness and justice[.]” If you want to see for yourself, you can go to www.berniesanders.com I haven’t looked, but there’s probably something similar on Hillary Clinton’s website—or maybe on a private server somewhere.
And finally, just last week, I was honored to stand with several of my Senate colleagues to announce the Sentencing Reform and Corrections Act, which I’ll be talking about in a few minutes, and which may well be the most important step forward on this issue in a generation.
This bill is the culmination of many years of effort by policymakers, scholars, and activists on both sides of the aisle. Like most legislative compromises, it isn’t perfect. But it’s a great start, and it’s a testament to the long-overdue, bipartisan momentum that’s now building on this issue.
But I’m not here to make the bipartisan case for criminal justice reform. I came to the Heritage Foundation to make the conservative case for criminal justice reform, to discuss—on our terms—what’s wrong with our criminal code and penal system today, and to tell you what I think a conservative approach to policing and punishment should look like in the 21st century.
Now, I realize that most people—including many conservatives—might think criminal justice reform is a progressive cause, not a conservative one. But this has never been true.
The most successful criminal justice reformers in the 20th century advocated for conservative goals: law and order built on the responsible use of government’s coercive powers; tight-knit communities; a vibrant civil society; strong, intact families; and personal responsibility.
Yet many on the right have accepted the conventional wisdom and, as a result, are skeptical about calls for reform. And in one sense, I can’t blame them. Listening to some of the rhetoric on the Left today, you’d think our criminal laws and penal system are not just in need of reform, but fundamentally—if not intentionally—unjust and discriminatory.
That even goes for some liberals who have been good partners in the movement for reform. In a recent speech President Obama spoke about the “long history of inequity in the criminal justice system in America”—as if the problems today were no different than the problems of the past. And it’s not just the Left’s sweeping indictment of our system that’s unappealing to conservatives. Many of the so-called reforms offered by progressives seem more concerned with lowering the incarceration rate than lowering the actual crime rate.
But, as criminal law scholar Stephanos Bibas puts it, “just because liberals are wrong does not mean the status quo is right.”
Think about it: when there’s a major problem tearing at our economy and civil society—a problem that’s threatening our most vulnerable families and communities—conservatives don’t just shrug and expect a bunch of outdated laws and bloated government bureaucracies to take care of it. We know better.
And we have seen what happens when conservatives surrender an issue entirely to the left—as we did for many years on poverty, and health care, and education. We know who paid the price for our failure to lead—the same struggling families, fraying communities, and at-risk kids who will continue to suffer if we do so again on criminal justice.
If there is one thought I can leave with you today, it’s this: criminal justice reform doesn’t call on conservatives to compromise our principles, but to fight for them. It’s about making our communities—the little platoons of service and cooperation at the heart of our republic—safe and prosperous and happy.
It’s about basing our laws, our court procedures, and our prison systems on a clear-eyed understanding of human nature—of man’s predilection toward sin and his capacity for redemption—along with an uncompromising commitment to human dignity.
Respect for the equal dignity of all human life—no matter how small or weak—and for the redemptive capacity of all sinners—no matter how calloused—is the foundation for everything that conservatives stand for. Our approach to policing and punishment should be no different.
So, as I see it, criminal justice reform properly understood represents principled conservatism at its best.
For conservatives, the question isn’t whether we punish those who break the law, but how we punish them—for how long, under what circumstances, and toward what end. Just as the government has the power to punish those who break the law, it has a corresponding duty to use its coercive powers responsibly—to sentence offenders on an individualized basis and no longer than necessary.
The real problem today is not simply that penalties are too harsh or sentences too long—though in many cases they are. The problem is that, over the past several decades, we have industrialized and bureaucratized our criminal, judicial, and penal systems. Which is to say, we’ve turned them into large, unaccountable, short-sighted, self-interested institutions that often treat offenders as statistical units, instead of human beings.
We have a criminal code so big that no one knows how many crimes are even on the books—not even the Congressional Research Service, which pays people to measure these things. An increasing number of these criminal offenses are written not by legislators at the state level, but by bureaucrats in Washington. And far too often they’re written without a mens rea requirement, leaving law-abiding citizens guilty of crimes without intending to do anything wrong.
We have federal sentencing laws that too often prohibit judges from exercising their human and legal judgment while punishing offenders. And we have a penal system that isolates offenders from the only people and responsibilities in their life that have the power to facilitate true rehabilitation and redemption.
No wonder an estimated three-quarters of offenders released from prison every year are re-arrested within five years. Of course, for many offenders, isolation from these vital sources of human and social capital began long before—and may well have fueled—their criminal activity.
Which is why, for conservatives, criminal justice reform must be part of a broader agenda of opportunity and mobility. That agenda must expand access to the networks of opportunity within our free-enterprise economy and voluntary civil society—for all Americans, especially the most vulnerable and marginalized.
This isn’t an “either/or” proposition; it has to be “all of the above.” There are principled conservative policy responses reaching education, welfare, housing, transportation, health care, and beyond. For conservatism to serve the whole nation, it has to serve the whole person, and fight for everyone Washington’s broken status quo is leaving behind.
Restoring equal opportunity to all Americans depends on reforming America’s judicial, policing, and penal systems on the basis of human dignity.
That goes for the victims of crime and their families, who are too often cut out of the process; for the neighborhoods that are denied the basic safety most of us take for granted; for the families, especially the young women and single moms—who have to face every day without so many of their young men, whom they, and their children, and our entire society desperately need to live as husbands and fathers and anchors of their communities; and finally, for the perpetrators, who are, after all, no less human than the rest of us.
For conservatives, the process of reform begins by recognizing not the mistakes of our past, but the successes—because the dysfunction that we see in today’s status quo is more often the product of good intentions gone awry and sound policies grown old than the manifestation of historical or structural inequities.
The case for reform can’t rest exclusively on statistics about incarceration. With more than 2 million Americans behind bars today, and one in every 28 American children with an incarcerated parent, the figures are truly startling. But this tells only half the story. Incarceration doesn’t happen in a vacuum—it’s a direct response to crime.
The reason we have an incarceration problem in America today is that, for much of the second half of the 20th century, we had a major crime problem. Through good economic times and bad, regardless of which party won elections, and no matter how generous we made our welfare programs or how tough we made criminal penalties, the scourge of violent and drug-related crime stubbornly persisted for three decades.
Contrary to popular mythology, some of the strongest advocates of the stern penalties for heroin and crack cocaine in the 1970s and 80s were the primary victims of crime: residents of urban, working-class communities who were the most directly and routinely threatened by the violence that grew out of widespread drug addiction and family breakdown.
But the combination of deterrence and incarceration was not the answer that many had hoped it would be. Even as sentences became stiffer and incarceration rates rose, violent crime rates continued to climb. All told, between 1960 and 1991 violent crime rates increased by a factor of four, and homicide rates almost doubled across the country.
This was no “crime wave.” It was a flood—of lawlessness and violence, compounded by an unprecedented drug epidemic—that left shattered families and frayed communities in its wake. And there was nothing inevitable about its retreat.
Starting in the early 1990s, violent crime rates in America began to recede—a trend that continued for the next 20 years, through the present day. This dramatic drop in crime was one of the greatest domestic triumphs of the post-World War II era. But it wasn’t simply a function of locking up more offenders. In fact, we know from the experience of places like New York City that it’s possible to reduce the crime rate and the incarceration rate at the same time.
Rather, it took a generation of iconoclastic reformers—conservatives—to finally stem the tide. And they did so by revolutionizing the nation’s approach to policing and punishment. One of those iconoclasts was the theologian Michael Novak.
Novak expressed the key insight of his reform-oriented generation when he wrote in 1986: “What is amazing is not that human beings are sometimes criminal. What requires explanation is the fact that all are not. What requires explanation is virtue.”
Novak’s point was that criminal behavior is not a curiosity that requires complex theories to understand. It is a natural feature of human life. And the only way to mitigate our innate inclination toward criminal behavior is to protect and promote our most reliable sources of virtue… where all of us, throughout our lives, learn—and when necessary are forced—to be honest, decent, kind, and conscientious.
The most important of these character-forming institutions are: family, faith, work, and community. The innovative policing and punishment reforms of the ’80s and ’90s that grew out of Novak’s insight succeeded precisely because they were designed to strengthen—and increase access to—these invaluable networks of trust and opportunity.
There was broken-windows policing—the single most effective crime-reduction policy of the era—that helped rebuild fractured communities from the bottom up. As it was originally conceived by James Q. Wilson and George Kelling, broken-windows policing was a collaborative project. It called on law-enforcement officers and neighborhood residents to work together to maintain public order—following local standards, not rules imposed from above.
This kind of order maintenance wasn’t about maximizing arrests, but working together to reinforce what Wilson and Kelling called the “informal control mechanisms of the community.” These are all the little things neighbors do—to mind the gaps, help each other out, and set expectations for everyone else to do the same. Together they form the connective tissue of tight-knit, safe communities.
These informal social bonds—always anchored by the ultimate formal bond of marriage—are formed and strengthened through faith, family, work, and community. And they are corroded by violence and public disorder, which then foster the conditions that breed crime.
Broken-windows policing disrupted this negative feedback loop, reducing the frequency of criminal behavior. And it did so by repairing and supporting the homegrown, social foundations of neighborhoods—especially those that had been hit the hardest by the violence and disorder unleashed by the drug epidemic.
Then there was the growth of prison ministry efforts—inspired by the example of Chuck Colson—that catalyzed the rehabilitation and redemption of countless wounded souls languishing behind bars. Chuck Colson was formerly President Nixon’s infamous “hatchet man.” But he became one of the most successful prison-reform advocates in America, and the founder of Prison Fellowship, after his life took two unexpected turns.
In 1973 he committed his life to Jesus Christ. The following year, he pled guilty to Watergate-related charges and served seven months in prison. As he explained it, these two experiences—coming to know Christ and coming to know his fellow convicts—taught Colson that,
The solution to crime is no different from […] the solution to the human predicament as a whole. We are at odds with God; we cannot repair this situation ourselves; God has repaired it for us and offers us a part of that great eternal solution.
Colson had the credentials—as a conservative, a born-again Christian, and a convicted felon—to live as a witness, teaching those on the outside about the indignities of prison life, and inviting those on the inside to seek moral transformation through faith.
Finally, starting in the late 1970s, there was a proliferation of prison alternatives—like therapeutic communities, long-term residential treatment centers, and drug courts. All of which enabled offenders to stay connected to community, family, and work while serving out their sentences.
Studies estimate that nearly three-quarters of inmates were gainfully employed in the month prior to their arrest. And we know that a majority of prisoners are also parents—most of whom lived with their minor children before they were arrested or incarcerated.
Yet the traditional penitentiary approach to punishment severs the offender’s ties to their family and work life. To make matters worse, prison doesn’t just isolate offenders from networks of trust—it plugs them into networks of distrust.
It takes them from a community of law-abiding citizens, where most people work and have families, to a community of convicted criminals, where idleness is the norm and families are separated not just by walls and barbed wire, but often by hundreds, if not thousands, of miles.
That physical distance is often compounded by limited access to outrageously expensive phone calls home. In an era of FaceTime, texting, and ubiquitous telecommunications, this kind of isolation is as cruel as it is unnecessary.
By contrast, prison alternatives challenge the long-standing presumption in favor of incarceration and mitigate its most damaging consequences. This was a grassroots movement, often led by former inmates who knew first-hand the dysfunction of government-run or government-funded correctional institutions.
And it succeeded where prisons so often fail—in preparing offenders to reintegrate into their communities as productive and law-abiding citizens: as spouses, parents, neighbors, and employees, instead of career criminals.
This history shows that criminal justice reform can be, and traditionally has been, a conservative project that accomplishes conservative goals—of balancing retribution and rehabilitation, justice and mercy, the rights of victims and of perpetrators.
These same goals animate the Sentencing Reform and Corrections Act, which my colleagues and I released earlier this week. Our bill expands federal judges’ now-limited discretion, so they can treat offenders like human beings, not statistics, and punish them according to their particular circumstances.
It broadens the federal “safety valve”—a provision that allows judges to sentence a limited number of offenders below the mandatory minimum. Contrary to what many critics claim, this doesn’t absolve offenders of their crimes. Nor will it suddenly and indiscriminately release legions of violent predators into our communities. In fact, under this reform, the status of offenders with serious drug or violent convictions won’t change. They will remain ineligible for federal “safety valve” relief.
Finally, the bill improves the quality of our federal prisons—by increasing access to vocational training, therapeutic counseling, and reentry services—so that we have fewer first-time offenders turning into career criminals.
All of these are commonsense and long-overdue reforms. But make no mistake: we are at the beginning, not the end, of this generation’s story of criminal justice reform. There is still work to be done if we truly want to rebuild the system according to the principle of human dignity and upon the proven successes of recent reforms at the state level.
There may be no better example to emulate than that of my home state of Utah, where judges are generally not bound by mandatory minimum sentences. While they still send many offenders to prison, Utah judges have the discretion to impose other sanctions—smarter sanctions—in appropriate cases. And sometimes that includes people like Paul Morris.
Before Paul was charged with aggravated robbery and assault, he was a successful salesman—earning close to six-figures a year—and a proud husband and father of a beautiful little girl. But he threw it all away when he started using methamphetamine.
What began as experimental quickly became habitual. Before long Paul was addicted to meth and to petty theft—the quickest and easiest way to fund his addiction.
Paul’s story is the familiar downward spiral—of his own making. It ended in divorce, separation from his daughter, unemployment, criminal conviction, and, ultimately, to one last choice; this one from a judge—either go to prison or enroll in Odyssey House, a long-term residential treatment center in Salt Lake City.
As Paul tells it, this was a choice not of punishments but of lives—between hopelessness and hope, criminality and change. He knew Odyssey House would be the more demanding and difficult choice. Getting through prison is often a matter of survival—of simply “serving time.” But Paul knew there were only two ways to leave Odyssey House: dropping out, which would send him to prison, or changing his behavior.
And, with the help of a lengthy prison sentence hanging over his head, Paul knew he wanted to change. He wanted to get clean, to support his daughter, and to recover the dignity and pride—the natural high of service-based success—available only through lawful work.
So he chose Odyssey House. And since moving in ten months ago, Paul has flourished. Like most therapeutic communities, Odyssey House is essentially run by the recovering addicts residing there. So everyone has to pitch in—not just to earn success, but to earn trust.
After starting as a cook in the kitchen, Paul soon moved to a job with a higher profile and more responsibilities: supervisor of the department that receives, processes, and introduces new residents to Odyssey House. This role—along with the community setting for much of his counseling—has been critical to Paul’s recovery. They are helping him learn—or relearn—those fundamental social skills and habits of the heart that are essential to being a member of a healthy community.
Paul understands he still has a long way to go. He knows that, whatever else happens, he’ll always be a recovering drug addict, just as he’ll always be a reformed offender. He knows that moral transformation is a life sentence. But, with the tools provided by Odyssey House, it’s the sentence he’s pleading for.
Reforming our federal laws so that judges have the option to send people like Paul to a place like Odyssey House, doesn’t mean we should avert our eyes from what he has done or the crimes he has committed; or pretend like it never happened; or make excuses that blame someone, or something, else for the choices he made.
Instead, it requires looking squarely at the facts of the case, no matter how ugly or wicked, holding offenders directly and personally accountable for their crimes, and devising a punishment—neither too lenient nor too harsh—that fits both the crime and the criminal.
We do this all the time in our daily lives when we recognize the humanity of hating the sin and loving the sinner—it’s called forgiveness. Forgiving is not the same thing as excusing. And it’s not incompatible with punishment. Forgiveness requires assigning blame and, when necessary, imposing just punishments.
Which is to say, forgiveness requires treating offenders not as blameless victims, but as morally responsible individuals—as human beings who, like the rest of us, have the propensity for vice and for virtue, and who must be held accountable for their choice of one or the other.
Some crimes are so heinous, and some criminals so monstrous, that the only responsible and fair use of the state’s coercive powers is to prevent an offender from ever reentering the society that he has so routinely or so violently threatened.
But the reality is that almost every offender who goes to prison will one day get out. We do ourselves a disservice when an offender’s punishment does more to promote criminality than penitence.
Forgiveness doesn’t determine who is guilty or dictate what an offender’s punishment should be—that’s what police, juries, and judges are for.
But real forgiveness also doesn’t discriminate. As a matter of morality, I believe we are called not to forgive those who love us and foreswear those who hurt us, but to accept that to be human is to be in need of forgiveness.
And morality and religion aside, considered strictly as a matter of human nature and self- government, the pursuit of happiness depends on the opportunity to earn second chances. That is doubly true for Americans—trapped from youth in government-imposed dysfunction and inequality—who barely have one chance as it is. Treating our fellow citizens—our “fellow passengers to the grave”—as disposable is a price too high to pay for a society that truly believes that all lives matter.
We know that no man is without sin. Now, we must remember—in our hearts and in our laws—that no man is without hope.
This is why I’m involved—and invite you to join me—in the conservative movement for criminal justice reform.
Mike Lee represents Utah in the United States Senate.