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Criminal Justice Reform Steps Out of the Shadows

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 [1] 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 [2] the resulting compromise well:

The bipartisan proposal [3] 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 [4] 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 [5] after a widely-reported New York Times story [4], and gave ample reason for caution. If a combination of potential reality and political persuasion does spark fears of a return [6] 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 [7]) 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 [8], 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 [9], 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.

9 Comments (Open | Close)

9 Comments To "Criminal Justice Reform Steps Out of the Shadows"

#1 Comment By Theodore Whitfield On October 5, 2015 @ 3:35 am

I’m certainly in favor of reducing arbitrary minimum sentences. But it’s unclear what impact this will have on any “mass incarceration”. My understanding (and I could be quite mistaken about this) is that the majority of prisoners are incarcerated precisely because of the “serious drug felonies and violent crimes” that are excluded from this legislation. The primary reason for mass incarceration is because a great many people have committed serious offenses, and it’s hard to understand why they shouldn’t be doing time. So, yes, in individual cases, this is a step towards a more just (rather a less injust) system, but it’s not clear from this article just how much the actual prison population will be reduced.

#2 Comment By Interguru On October 5, 2015 @ 9:11 am

Even though an number of religious leaders have been agitating for criminal justice reform, it caught on for more prosaic reasons.

First the budget busting expense of keeping so many people locked up.

Second, the opiate epidemic has hit the middle class. Zero tolerance has much less appeal when it hits your friend’s kids, or your own, than when it is used for dark-skinned inner city people.

#3 Comment By Fred Bowman On October 5, 2015 @ 10:31 am

Criminal Justice reform is way overdue. Glad to hear that Both parties are trying to work together on this issue.

#4 Comment By Sam On October 5, 2015 @ 2:52 pm

The primary reason for mass incarceration is because a great many people have committed serious offenses…

A great many people have been convicted of offenses which lawmakers have decided are serious.

This is an important distinction; We can’t assume that everyone deserves the time they get, or that every offense should even be a crime to begin with. Doing so lends too much credibility to a system run by overzealous prosecutors and beholden to the prison-industrial complex.

#5 Comment By Joe F On October 5, 2015 @ 4:46 pm

Two other elements are not really addressed here. One is that citizens who are not impacted in anyway too easily adopt a “throw the key away” mentality that they mistakenly believe is a silver bullet reducing disincentive to committing crime. And secondly, prosecutorial strategy of scaring defendants with long sentences for which they don’t have resources to defend and plea out to jail time as lesser evil. Prosecutors get a tidy resolution to cases and defendants get lower sentences than they might otherwise face, but can’t really say true justice has been served

#6 Comment By Junior On October 5, 2015 @ 11:48 pm

I think that Interguru’s analysis is spot on about the budget and the opiate epidemic being the main drivers for this change and of any hope of reform at the State levels. It’s a shame but true that a lot of people have no empathy or wish for change until it affects their wallets or “one of their own”.

#7 Comment By TWS On May 10, 2016 @ 2:13 pm

Go live in an intake bay of any good sized jail or prison for a week. Then come back and tell me how innocent and safe your fellow inmates are.

By the time they get to prison they have more than amply demonstrated their dangerous and anti-social behavior over and over again. Heck, don’t live in one, just work there and you’ll never think the same way again.

#8 Comment By David Giza On May 14, 2017 @ 4:39 pm

It disgusts me that many conservatives nowadays favor criminal justice reform which means reducing mass incarceration. These ”conservatives” are CINO’S or Conservatives In Name Only. Some people regardless of race, income level or home environment are just bad, evil scum and deserve to be locked up.

#9 Comment By UNDANGQQ On May 3, 2019 @ 12:32 am

First the budget busting expense of keeping so many people locked up.