Attorney General Eric Holder has announced that the Obama administration will stop charging non-violent and non-gang-affiliated drug offenders with offenses that mandate harsh minimum sentences. It is welcome news, but Holder is late to the “mandatory minimum” reform bandwagon — and he’s late to criminal-justice reform, in general.
As Rich Lowry noted last week, conservatives have been involved in this work for years. Since 2010, conservative legislatures in Ohio, Georgia, Pennsylvania, and South Dakota have passed major criminal-justice-reform packages. In 2007, Texas passed a reform package that avoided nearly $2 billion in prison construction costs by dedicating a far smaller amount to drug courts, electronic monitoring, and improved parole and probation monitoring of non-violent offenders. Six years later, Texas’s crime rate had reached its lowest point since 1968, and the legislature had authorized three prison closures.
The Texas model succeeds, in part, because Texas is not hamstrung by mandatory sentencing. This is different from the model that has been used for years by the federal government — and by dysfunctional states such as California, in which the state prison population was nearly 180 percent of capacity in 2010. Some conservatives applauded mandatory minimums in the 1990s, but so did many liberals and prison-guard unions for whom maximum incarceration meant maximum job security.
As a result, the Bureau of Prisons budget increased by about $197 million per year from 1980 to 2010, a 1,700 percent increase, and the current BOP budget is 25 percent of the entire Department of Justice budget. When the department announced on July 25 that national declines in crime were accompanied by a third consecutive year of declining prison populations, all of the decrease had come at the state level. The federal prison population had actually increased.
Senator Rand Paul and Senator Mike Lee have already identified these problems and filed bills to reform federal mandatory minimum sentencing. In June, George Will voiced support for such reforms. In the House of Representatives, Representative Jason Chaffetz has filed a wide-ranging bill that proposes reforms targeted at reducing recidivism rates. For years, several prominent conservatives, including Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have been signatories to the Right On Crime Statement of Principles, which proposes a broad return to conservative fundamentals of accountability, transparency, and community in the criminal-justice sphere.
The attorney general has exercised his authority to provide guidance to federal prosecutors to exercise discretion in applying mandatory minimums in drug cases to ensure that the longest sentences are reserved for kingpins. Nonetheless, this administrative action comes five years into this presidency and could be undone at the whim of this or any future attorney general. Therefore, statutory reforms are still needed to ensure that the law provides a reasonable range of punishment for low-level federal drug offenses such that there is enough prosecutorial and judicial flexibility to craft sentences that fit the crime.
— Vikrant P. Reddy is policy analyst for the Texas Public Policy Foundation and the foundation’s Right On Crime initiative. Marc A. Levin is director of the Center for Effective Justice at the Texas Public Policy Foundation and policy director of the foundation’s Right On Crime initiative.