Some liberal judges back in the 1970s and ’80s enraged the public by allowing felons back on the street with little more than a slap on the wrist. In response, Congress and many state legislatures enacted mandatory-minimum-sentencing laws that essentially eliminated the discretion judges had always enjoyed to make the punishment fit the crime. These laws were incredibly popular when first enacted but have created more problems than they’ve solved.
Undoubtedly, the tough-on-crime sentiment these laws reflected has advanced our welcome, two-decade decline in drug-related and violent crime. But I have come to believe that the wholesale adoption of mandatory minimum sentencing hasn’t worked as well as everyone had hoped.
Like many conservatives, I supported many of these laws when they were enacted and still believe that, in some narrow situations, mandatory minimums makes sense. But like other “one-size-fits-all” solutions to complicated problems, they should be reviewed in light of how they work in practice.
Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy (D., Vt.) have crafted a smart and modest reform bill that will fine-tune these laws to eliminate many of the unforeseen and, frankly, unfair consequences of their application when the facts demand more flexibility. This bipartisan measure deserves conservative support.
The bill, the Justice Safety Valve Act of 2013, maintains existing federal mandatory-sentencing laws. It enables judges to depart from the minimums in certain cases, however, such as when the mandatory sentence is not necessary to protect public safety and seems blatantly unfair in light of the circumstances of the offense. In so doing, their proposal fulfills the primary objective of criminal-justice policy: protecting public safety, while promoting our constitutional separation of powers and saving taxpayers the expense of unnecessary and counterproductive incarceration.
Many people, conservatives as well as liberals, have come to believe that most mandatory-minimum-sentencing laws should be repealed. These laws give prosecutors nearly unchecked power to determine sentences, even though courts are in a better position to weigh important and relevant facts, such as an offender’s culpability and likelihood of reoffending.
Federal mandatory-minimum-sentencing laws are especially problematic. Not only do they transfer power from independent courts to a political executive, they also perpetuate the harmful trend of federalizing criminal activity that can be better prosecuted at the state level.
For years, conservatives have wisely argued that the only government programs, rules, and regulations we should abide are those that can withstand cost-benefit analysis. Mandatory minimum sentences, by definition, fail this basic test because they apply a one-size-fits-all sentence to low-level offenders, even though the punishments were designed for more serious criminals.
Economists who once wholeheartedly supported simple pro-prison policies now believe they have reached the point of diminishing returns. One is University of Chicago economist Steven D. Levitt, best known for the best-selling Freakonomics, which he co-authored with Stephen J. Dubner. Levitt recently told the New York Times, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration,” and, today, “I think we should be shrinking the prison population by at least one-third.”
In other words, the initial crackdown was a good thing, but we are now suffering the effects of too much of that good thing.
If Levitt’s estimate is even close, right now we are wasting tens of billions of dollars locking people up without affecting the crime rate or enhancing public safety. In fact, spending too much on prisons skews state and federal budgetary priorities, taking funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts.
The Paul-Leahy bill will help restore needed balance to our anti-crime efforts. Repeat and violent criminals will continue to receive and serve lengthy prison sentences, but in cases involving lower-level offenders, judges will be given the flexibility to impose a shorter sentence when warranted.
The Paul-Leahy bill is a modest fix that will affect only 2 percent of all federal offenders, and even they won’t be spared going to prison. They will simply receive slightly shorter sentences that are more in line with their actual offenses.
The bill will improve public safety, save taxpayers billions of dollars, and restore our constitutional separation of powers at the federal level while strengthening federalism. This is a reform conservatives should embrace.
— David Keene is a former president of the National Rifle Association, a former chairman of the American Conservative Union, and a founding member of Right on Crime, a conservative criminal-justice reform group.