Bipartisan Prison Reform

by Betsy Woodruff
Many conservatives and liberals agree: We’re putting too many people in jail.

For the past ten years, a small group of influential conservative leaders has been getting together occasionally after one of Grover Norquist’s famous off-the-record Wednesday Meetings to plot the Right’s strategy on a tricky, politically fraught issue. Not fracking, not gay marriage, not campaign finance. Instead, every few months, these conservative leaders from name-brand organizations have been circling up to talk prison reform. 

Now, according to a number of Hill aides, we’re on the cusp of getting bipartisan prison-sentencing reform. And another prison-reform bill looks to be within shouting distance. If everything falls into place for the legislators pushing for reform, it will be surprising for two reasons: First, because the number of bipartisan accomplishments in this Congress is less than enormous; and second, because the bipartisan allies pushing for these policy changes are about as ideologically far-flung as they come. Tea-party favorite Mike Lee (R., Utah) and Senate majority whip Dick Durbin (D., Ill.) have teamed up, as well as Texas Republican John Cornyn and Vermont Democrat Patrick Leahy. It’s like the start of a “Meanwhile, on Earth 2” joke. 

Conservative interest in criminal-justice reform may sound novel, but in reality it’s nothing especially new. Pat Nolan of the American Conservative Union tells NRO that the quiet meetings of conservatives interested in prison reform started after the 2004 elections. Nolan, who was working on prison-reform issues with Chuck Colson’s Prison Fellowship ministry at the time, had been involved in the conservative movement since 1966 and used his extensive contacts to help put together the ad hoc group of conservative movers that, depending on the day, has included Norquist; NRA president (and longtime ACU president) David Keene; the late Tony Blankley, sometime press secretary to Newt Gingrich; representatives from the Cato Institute and the Heritage Foundation; and direct-mail pioneer Richard Viguerie. 

Over lunch, Nolan briefs the attendees (there are usually eight to ten of them), picks their brains on how to build more conservative support for reform, and gets advice on how to handle messaging and media. Attendees go on to write op-eds, do radio interviews, and speak with legislators. 

Before there were downtown-D.C. strategy meetings, there was Texas. Marc Levin, policy director of the Right on Crime project at the Texas Public Policy Foundation, explains that financial concerns were a big selling point for state Republicans on prison reform. Texas legislators acted in 2007 after the corrections department told them it would need to spend the money to add upwards of 17,000 beds over five years. 

“As more and more money went into prison, there was less and less left for those things that could keep people out of prison,” Levin says. 

So the state passed reforms designed to reduce recidivism by creating alternatives to incarceration. Low-risk, nonviolent drug offenders were getting sent to prison because judges and prosecutors couldn’t find anything else to do with them, according to Levin. Prison in Texas costs $50 per person per day, but alternatives are much, much cheaper: Probation is only $3.50 per day, drug courts are about $6 to $8 per day, and an electronic GPS runs at about $10 per day. 

So policymakers realized they could make a dramatic increase in spending on incarceration alternatives and still save tons of money. And that’s not even touching on the fact that, as Levin points out, incarceration can sometimes be counterproductive. Alternatives to incarceration mean that people convicted of nonviolent crimes can spend time with their families instead of in prison.

The general consensus was that Texas’s reforms worked. In 2004, a little over 30 percent of the state’s released inmates ended up incarcerated again within three years. By 2007, that number had dropped to 24 percent. Instead of adding thousands and thousands of beds, the state closed three adult and six juvenile prisons. 

From a political perspective, the state’s success was incredibly significant — not just because it showed that prison reform was workable as a policy, but also because it was Texas. 

Norquist tells NRO that when he testified at a hearing on criminal-justice reform in Florida, “When I would say, ‘You know, in Texas they did this,’ all of a sudden the Republicans on the committee would look up and go, ‘Oh, you mean this is real. This isn’t something from Vermont.’” 

It took conservatives a little while to realize that you could accuse the Pentagon of wasteful spending without being soft on defense, Norquist continues. “We were slower to get the point on criminal-justice reform,” he says. 

But get it they did, and a number of other states have followed Texas’s lead: The Texas Public Policy Foundation worked with legislators in Georgia, South Carolina, Ohio, and Pennsylvania to pass sentencing reform. 

So conservative interest in state-level criminal-justice reform has grown significantly over the last few years. But Levin, a key mover in these reform efforts, stayed bearish about the odds of federal policy change. That changed, though, with Senator Rand Paul’s speech at Howard University last April. 

It was a really significant speech,” says Nolan, adding that it signaled that Republicans care about the lives and communities that feel the impact of mandatory-minimum-sentencing requirements. “He was expressing what was going on beneath the surface,” Nolan adds. 

Support from the Kentucky senator meant that backing for the efforts automatically grew.

“Ten percent of the Republican party goes, ‘I’m in because he explained it to me,’” says Norquist. “And others go, ‘Oh, a leading conservative says that, that’s interesting.’ So he clicks more people over into the ‘I’m on’ category than another similarly conservative guy would.”

The speech took conservative prison-reform efforts to prime time. Then senators on the Judiciary Committee took it within a stone’s throw of reality. Their efforts aren’t just bipartisan; they’re trans-ideological. 

And it’s important to note that this isn’t just — or even primarily — about saving money. Some of the most powerful allies for prison reform are social conservatives, including Family Research Council president Tony Perkins. Heritage Action is on board with sentencing-reform legislation from Senator Mike Lee, too. It seems a little odd at first, but it makes sense: If you’re pro-family — so runs the argument — then you should be for policies that keep onerous and unjust prison sentences from dividing families. 

“It’s a lot more sophisticated than just saying, ‘I’m tough on crime,’” says Lee.

“It’s important to point out that we’re not trying to say don’t send people to prison, don’t send drug offenders to prison, or whatever,” he adds. “But we’re trying to identify certain areas within the existing federal criminal code, certain aspects of our current federal sentencing system that don’t allow for our system to operate effectively and efficiently.”

That’s a goal that conservatives can rally behind. But it’s far from exclusive to the Right.

“On the Judiciary Committee, we probably have some of the most polarized members in terms of ideology,” says Cornyn. “But I’ve worked very well with people like Senator Leahy and others.” 

The two have introduced legislation inspired by Texas’s reforms, and the senior senator from Texas is optimistic about its potential for passage this Congress. The main action is in the Senate, but Representative Jason Chaffetz (R., Utah) has legislation that parallels it in the House. 

The Durbin–Lee legislation would modestly expand the “safety valve” that gives judges more discretion over sentencing for nonviolent drug offenders. It would also let certain offenders serving time for crack-related crimes petition for shorter sentences consistent with legislation passed in 2010 that reduced the disparity in sentencing between crack- and powder-cocaine-related offenses. And it would lower some mandatory minimums for drug offenses. Brian Phillips, a spokesman for Lee, tells NRO he expects to see action on the legislation in the next month or so. 

Sources say to expect one bill bringing together the prison-reform proposals. If it successfully wends its way through the committee — and it should — then the onus will be on Majority Leader Harry Reid to bring up bipartisan reform legislation for a vote. 

After years of coordination, planning, and strategizing, the conservatives who have conspired for prison reform think they’re close to seeing exciting payoffs.

— Betsy Woodruff is a William F. Buckley fellow at the National Review Institute.

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