Politics & Policy

Not Too Soft, Not Too Hard

. . . but just Right on Crime.

The world of conservative legal advocacy is fortunate enough to have a near-homographic (but not homophonic) set of Levins: Mark and Marc. The former is the gentleman with 8.5 million listeners on the radio, while the latter, the leader of the Texas Public Policy Foundation’s Right on Crime project, spent Wednesday contributing to the Sisyphean effort of educating Congress, trying to help Washington understand how Texas and other states have intelligently reformed their criminal-justice systems, and how the federal government could learn from their example.

Texas is known as a tough-on-crime state, and it is, but it is also a state with an enlightened leadership that keenly appreciates the fact that anti-crime measures adopted during the epidemic decades from the late 1960s to the early 1990s have in some part outlived their usefulness. In an era of generally falling crime rates, it will be no surprise that Texas has seen its overall crime rate drop 12 percent since 2007, having been driven down to 1960s levels. What is more surprising is that Texas did so while reducing its incarceration rate by 9 percent.

Right on Crime began with former attorney general Ed Meese’s coming to conclude in the late 1990s that laws establishing mandatory minimum sentences were in need of reform. Meese became a signatory to the original Right on Crime statement of principles a few years later — joined by Newt Gingrich, Bill Bennett, Grover Norquist, Jeb Bush, and others — and the efforts associated with that project have touched on everything from mandatory minimums to incarceration alternatives, from the application of sophisticated statistical tools of risk assessment to aggressive approaches to addiction that go well beyond pitching drug users into prison. The reasons for these reforms are partly humane — prison often leaves inmates substantially worse off upon exit rather than on the path to rehabilitation, something that is particularly true of nonviolent drug users — but also hard-headed: The reforms driven by Right on Crime have been associated with lower crime rates, with lower recidivism rates, and with substantial savings on criminal-justice expenses.

Texas is not the hang-them-all state of myth, Levin says. “Texas is still the state that has the largest prison system,” he says, “but it has enacted meaningful reforms, and those have been well-thought-out solutions bringing together judges, legislators, and prosecutors — not something done under some federal edict. The success in Texas, and also in Georgia and some other conservative states, are an example for how we can proceed with federal prison reform.” That reform, he says, is needed in part because of the changing composition of the federal inmate population. “A few decades ago, most federal offenders were white-collar criminals or international drug kingpins, but now there are a lot of small-fry offenders convicted of possession, dealing to their families, things like that. They need to be held accountable, but in a way that is commensurate. The stars are aligning for some success at the federal level, which in the past has been elusive.”

Those aligning stars include the support of Senator Rand Paul (R., Ky.) and Senator Mike Lee (R., Utah), but conservative criminal-justice reform is not limited to the libertarian side of the Right: Such traditional conservatives as Senator John Cornyn (R., Texas) have taken an interest, too. Reformers have been less successful in building support in the House.

Criminal-justice reform is a Nixon-in-China issue: Without leadership from conservatives, who are confident that they are well insulated from opportunistic accusations of being soft on crime, reform is not going to happen. Levin says he doubts that Attorney General Eric Holder would have made his recent announcement regarding the more liberal use of prosecutorial discretion in drug cases without the political cover generated by Republican governors and senators. “He took action feeling confident that a lot of conservatives would agree with him on the substance of the policy. This is five years into the Obama administration — it’s not that his views have changed.”

Spurring the Obama administration into action will prove difficult — to say nothing of bringing on board those populist conservatives who want to expand mandatory minimums and similar sanctions — but it is necessary. While incarceration rates in Texas and other states have been declining, the federal prison population has been growing; it has in fact grown sevenfold since the Reagan years. About half of all federal prisoners today are drug offenders, few of them cartel kingpins.

As Levin explains, federal drug laws are problematic in part because of the way their mandatory-minimum rules are structured. For example, a third felony drug conviction results in a mandatory life sentence. Perhaps that does not sound unreasonable for a third felony conviction, but those felonies are not necessarily felonies: A misdemeanor conviction in a state where that misdemeanor is punishable by at least twelve months in jail counts as a felony for federal sentencing purposes. And that is a lifetime running tab: There is no time limit excluding long-ago crimes from contributing to a mandatory life sentence. The abolition of parole for federal crimes in the 1984 Comprehensive Crime Control Act adds to the severity of these sentences.

Levin cites a Rand Corporation study finding that mandatory minimums are in the large part not cost-effective, the main exception being the cases of major international drug traffickers and cartel operatives. But the vast majority of those facing long sentences — or life sentences — under federal drug laws are not Sinaloa Cartel soldiers or Los Zetas. Treating them the same way makes little sense from a criminal-justice, economic, or humanitarian point of view.

Right on Crime emphasizes alternatives such as those developed in Hawaii by former federal prosecutor Steve Alm, under which nonviolent drug offenders are sentenced to treatment and supervision rather than prison. But they are not let off the hook: Failure to comply with treatment and supervision conditions results in conventional punishment that is, in Levin’s words, “swift, sure, and commensurate.”

Broad decriminalization of drugs probably will remain a wistful hope of the minority associated with the libertarian tendency, but a criminal-justice-reform movement that can count on at least some support from both Rick Perry and Mike Lee on the one side and Eric Holder and Pat Leahy on the other — and both Mark and Marc Levin — covers a broad band of the political spectrum.

— Kevin D. Williamson is a roving correspondent for National Review and author of the newly published The End Is Near and It’s Going to Be Awesome.


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