We are in the early stages of a sentencing revolution. Across the country, states seem to be racing each other to cast off their failed, budget-draining mandatory sentencing regimes in favor of smarter, more efficient alternatives. Surprisingly, this movement is being spearheaded by conservatives.
In 2007 the blood-red state of Texas, facing a skyrocketing prison population that would have required more than $1 billion for additional facilities, decided to shift resources to treatment programs. Gov. Rick Perry, a conservative Republican, called the move “tough and smart,” a view that was vindicated when both crime and incarceration rates dropped. Texas is continuing to enact evidence-based reforms that aim to rehabilitate offenders, such as hiring dozens of re-entry coordinators to help newly released inmates adjust to life outside prison, thereby reducing the number who commit new crimes and end up back behind bars.
Before leaving office last year, South Carolina Gov. Mark Sanford, also a Republican, signed a comprehensive reform bill that diverts low-risk, nonviolent offenders into community corrections programs rather than state prisons. The new law will save money while helping offenders make the transition back into their communities.
In the first few months of this year, Arkansas, Kentucky, Alabama, and Oklahoma hopped on the reform bandwagon. Not one of those states was carried by Barack Obama in 2008. The governors pushing hardest for reform right now include Indiana’s Mitch Daniels, Louisiana’s Bobby Jindal, and Ohio’s John Kasich. All three are beloved by conservatives.
Skeptics say the conservative conversion has nothing to do with justice and everything to do with saving money. Even if that were true, so what? Corrections spending is totally out of hand; according to the Pew Center on the States, it is now the second fastest growing line item in state budgets, trailing only Medicaid. As the UCLA criminologist Mark Kleiman told the Boston Phoenix earlier this year, budget reduction might be “the least good reason” to support sentencing reform, but “in this case, the goal of saving money, and the goal of not keeping people in cages, gets you to the same place.”
Some traditionally blue states also have arrived at that place. In 2009 New York finally overthrew the nearly 40-year-old Rockefeller drug laws, a grotesque set of mandatory minimum sentencing rules that the libertarian theorist Murray Rothbard, back in 1979, called “a fiasco” and “the epitome of the belief in treating a social or medical problem with jail and the billy club.” Months after New York acted, Rhode Island abandoned its drug-related mandatory minimums.
Cost is not the sole factor in these changes. None of these states has decided to roll the dice with public safety. Rather, they are looking for ways to keep crime under control more efficiently. In fact, many of these debates demonstrate that policy makers are familiar with the last three decades of criminal justice research, which shows punishment is a more effective deterrent when it is swift and certain rather than severe, and that a vibrant parole system with effective re-entry programs is a better way to rehabilitate nonviolent offenders than making them languish in prison.
Unfortunately, but not surprisingly, Congress is behind the curve. The rising federal prison population has pushed federal facilities to 35 percent over capacity. Half of all prisoners are nonviolent drug offenders serving mandatory sentences. There is no parole, and early release for good behavior is limited. Perhaps the most outrageous aspect of the federal system, both morally and financially, is the unwillingness to let the frail and elderly go home to die.
In 2010, to its credit, Congress finally reduced the sentencing disparity between crack and powder cocaine offenses. The gap, created in the mid-1980s under a Republican administration and Democratic Congress, had become a symbol of all that is wrong in federal sentencing. It was enacted without study or debate, its requirement of mandatory prison terms for minor offenders was draconian, and its uneven application devastated minority communities.
By the time the bill to shrink the disparity came to the floor of the U.S. House, well-known conservatives, including Grover Norquist and Ward Connerly, wrote in support of reform. No one in either chamber voted against it, and only one House Republican spoke in opposition.
Looking forward, state reformers probably will continue to set the pace. New efforts to scale back mandatory sentencing laws are already under way in states as diverse as Massachusetts and Florida. Prospects at the federal level remain less clear. The Obama Justice Department has proposed some policy fixes that would slightly reduce the prison population, but it also has signaled a willingness to consider new mandatory minimums for various crimes du jour. Perhaps more ominous, the one Republican to speak against the crack reform bill was Rep. Lamar Smith (R-Texas). Smith is the new chairman of the House Judiciary Committee.