By Alan Bean
Politics is behind the cancerous growth of the prison-industrial complex. Tough on crime rhetoric only works on the stump if it translates into legislation after the election. Politicians run on their records and everyone had a vested interest in establishing the right kind of record on public safety. This article in CQ gives the impression that Democrats have long been in support of ending mandatory minimums and introducing lighter sentences. It would be more accurate to say that some Democrats would have embraced the politics of compassion and common sense had that been an option. But since the mid-1970s, it hasn’t been an option.
The ship of fools that brought us the prison-industrial complex is beginning to turn. Big ships don’t turn quickly. In fact, the federal prison system has been growing in recent years, largely thanks to nasty immigration policies shaped by post 9-11 hysteria. But Republican politicians are in search of a kinder-gentler face (no one wants to look like the guy in the cartoon), so the reform agenda has a chance. How far this new mood takes us remains uncertain. Everything depends on how far and how fast Republican politicians are willing to move. This is a Nixon Goes to China moment. Democrats are still too fearful of political backlash to take the real risks reform demands.
Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands. Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations.
“I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.
Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice. Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.
The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books. (Story, p. 848)
The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.
The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce.
At the same time, the Republican chairman of the House Appropriations subcommittee that oversees federal prison spending, Frank R. Wolf of Virginia, plans to work with his Democratic ranking member, Chaka Fattah of Pennsylvania, to create a separate task force to review all aspects of the rapidly growing federal correctional system. Wolf is outraged that federal prisoners are not provided more opportunities to gain work experience and believes the Bureau of Prisons is holding too many people, including ill older inmates who no longer pose a threat to society. A report by the Justice Department’s inspector general recently came to the same conclusion.
“If you’re 68 years old and you’re dying of cancer and your life expectancy is seven months, why do we want to keep you in prison?” Wolf says.
Then there is Paul, who perhaps more than any other Senate Republican aligns with Democrats on sentencing issues. Paul is co-sponsoring a bill with Democratic Judiciary Chairman Patrick J. Leahy of Vermont that would allow federal judges to depart from mandatory minimum sentences under certain conditions — a so-called “safety valve” that effectively would do away with congressionally mandated punishments in many cases. Similar House legislation is co-sponsored by Scott and another Kentucky Republican, Thomas Massie.
“Some of the sentencing has been disproportionately unfair to African-Americans, and so I am for getting rid of the mandatory minimums or letting judges override them,” Paul says.
He argues that young drug offenders, in particular, are vulnerable to overly harsh punishments and points out that each of the past three presidents — Barack Obama, George W. Bush and Bill Clinton — was “accused of doing drugs as a kid.”
“Had they been caught, none of them would have ever been president,” he says. “Just by luck of not being caught, they did fine. But a lot of kids don’t.”
Conservative attitudes are changing away from Capitol Hill, too.
Former Florida Gov. Jeb Bush, former House Speaker Newt Gingrich, former National Rifle Association President David Keene, former Attorney General Edwin Meese III and anti-tax activist Grover Norquist are among the conservative stalwarts who have signed a declaration that prisons “are not the solution for every type of offender.” It is part of a statement of principles drafted by the Texas Public Policy Foundation in its effort — known as “Right on Crime” — to make “the conservative case for reform.”
If Republicans sound kinder and gentler on criminal justice today than they did two decades ago, their perspective has been guided by cold, hard numbers.
Goodlatte last week cited statistics showing that Congress has added an average of 500 new crimes to the law books in each of the past three decades. Those federal crimes overlap with scores of existing penalties for the same crimes enacted by the states, which handle the vast majority of the nation’s criminal trials.
The creation of hundreds of new federal crimes, combined with mandatory minimum sentencing laws and the 1984 elimination of parole for federal offenders, has resulted in a steady and costly uptick in the federal prison population. The federal corrections system is now the largest in the country, much larger than state systems in Texas and California.
In fiscal 2006, the Bureau of Prisons had 192,584 inmates. Five years later, the number had grown 14 percent to 218,936, according to a November report by the Justice Department inspector general.
Massie, formerly the top elected official in Lewis County, Ky., says his perspective has been shaped by his experience managing a local budget, where he says his “biggest line item” was incarceration. The first-term lawmaker backs a bipartisan corrections overhaul that Kentucky enacted in 2011 and said Republicans on the federal level should embrace similar changes because mass incarceration runs counter to established GOP principles on government spending.
“I call it socialism with constrained mobility,” Massie says. “You’re paying for all their medical costs. You’re paying for all their food, all their housing. You’ve got to have air conditioning. Jails are not cheap.”
While the dialogue may be changing, passing legislation, as always, is another story. Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.
The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.
Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties. “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.
Massie, Wolf and other lawmakers have pointed to a raft of state-level prison overhauls in recent years as possible models for federal action. Wolf says he wants his task force to include state correctional officials who could advise federal lawmakers.
But methods that work at the state level may not apply federally. States, for instance, have been able to trim their prison populations by redirecting “technical violators” — those who bucked their probation or parole — to cheaper local jails or day reporting centers. At the federal level, there are relatively few technical violators who could be handled that way.
While the challenges are clear, those who support the GOP-led discussion surrounding criminal justice say it is encouraging that the debate is happening at all.
“It’s a significant step forward that a bipartisan group of legislators is really for the first time looking in a very serious way at ways to try to get their arms around this behemoth,” says John G. Malcolm, a senior legal fellow at the Heritage Foundation.