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Conservatives Try to Co-opt Criminal Justice Reform

After decades of driving prison expansion by espousing tough-on-crime sentencing laws, advocating for policies to lock up criminals and throw away the key, and exploiting the public’s fear of crime, conservative lawmakers have finally discovered criminal justice reform. Like European explorers being met on the beach by throngs of Native Americans, they are now trying to claim ownership of their newfound “discovery” despite a long history of reform efforts by progressives, non-profit organizations and faith-based groups.

In 1992, then-U.S. Rep. Newt Gingrich, a Republican from Georgia, told The New York Times that more prisons should be built so every violent criminal in America could be locked up for their entire sentence with no time off for good behavior. His 1994 “Contract with America” included the Taking Back Our Streets Act, which funded prison construction and rewarded states that reduced parole rates with additional funding. During the next 20 years the prison population in the U.S. more than doubled; the estimated $82.7 billion spent on incarceration in 2009 was an increase of 230% over 1990.

In a 2011 Washington Post op-ed, Gingrich reversed course. “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential,” he wrote. “We can no longer afford business as usual with prisons. The criminal justice system is broken, and conservatives must lead the way in fixing it.”

Republican Tennessee state Senator Brian Kelsey, appointed to serve on the state’s Task Force on Sentencing and Recidivism in 2014, remarked, “We have decided we’ve got to do a better job on focusing our limited resources on the most violent offenders,” noting that 40% of Tennessee prisoners were serving time for technical parole or probation violations.

On May 21, 2014, dozens of conservatives met in the Ronald Reagan Building in Washington, D.C. to claim leadership of the criminal justice reform movement. Gingrich, who was present, called the session a “turning point” and admitted that the drive for more prisons and longer sentences in the 1980s and 1990s had the “unexpected consequences” of locking up too many people for nonviolent crimes. Other conservatives at the meeting, including former U.S. Attorney General Edwin Meese, former Ohio Secretary of State Ken Blackwell, U.S. Senator John Cornyn and well-known conservative activists Grover Norquist, David Keene, Richard Viguerie and Pat Nolan, seemed to agree.

Mississippi Lt. Governor Tate Reeves and other state leaders described how their criminal justice reforms, modeled after efforts in Texas and signed by Republican Mississippi Governor Phil Bryant in March 2014, will save the state at least $266 million over the next decade.

Texas attorney Marc Levine led the turnaround in conservative thought after a board member of the free market-oriented Texas Public Policy Forum told him in 2005 that Texas state prisons were a poor investment of taxpayer dollars.

“We’re not getting a good return for our money out of our prisons,” he decided. “Once you reach a certain rate of incarceration, you start to have diminishing returns because you aren’t just putting dangerous people in prisons anymore. You are putting in nonviolent offenders. You are not really impacting crime. You are not making people safer.”

Levine became an advocate for criminal justice reform and, when the Texas legislature was considering a 17,000-bed, $2 billion expansion of the state’s prison system, proposed an alternative for one-eighth the cost. His proposal, signed into law by Texas Governor Rick Perry, included drug courts and rehabilitative programs for defendants with substance abuse and mental health problems. It also set up alternative, short-term facilities where parole violators could be sent instead of returning them to prison. In 2009, Texas’ incarceration rate dropped by 12%; since that time the state’s prison population has decreased 20% following implementation of criminal justice reforms.

Levine founded an organization called Right on Crime in 2010 to expose conservatives in other states to alternatives to the tough-on-crime, politics-as-usual approach. The organization sponsored the May 2014 meeting in Washington and has earned praise for bringing attention to the need for criminal justice reform, even from liberal groups such as the ACLU.

One of Right on Crime’s main goals is targeting technical parole violations, which contributed to a substantial amount of the prison population increase in the 1990s. Since 2006, at least 11 states under Republican leadership have reduced the penalties associated with parole violations.

Right on Crime has also criticized sentences that are predetermined due to the nature of the offense regardless of circumstances which may otherwise have resulted in a lesser sentence. In South Carolina, predetermined sentences were eliminated for some non-trafficking drug crimes in 2010. The American Legislative Exchange Council (ALEC), a conservative group that previously developed model legislation for mandatory minimum sentences, truth-in-sentencing bills and three-strikes laws, has more recently supported efforts to grant judicial discretion to ignore mandatory minimums in some circumstances.

Nonetheless, Republican-controlled states have lagged behind their Democratic counterparts in terms of reducing prison populations between 2006 and 2012, by more than 10%.

At the Conservative Political Action Conference (CPAC) in March 2016, Jerry Madden, a former Republican Texas lawmaker, said, “Now [after criminal justice reforms in Texas], when a drug addict or someone with a mental health problem comes out of prison, gee, they are less likely to commit another crime. That’s what you want. Everyone said, ‘How can Texas do that kind of stuff?,’ and lo and behold, many, many states have followed.”

Ken Cuccinelli, the former Republican attorney general of Virginia, spoke to CPAC participants about the importance of addressing mass incarceration in America. As reported by the Daily Signal, he said, “The left cannot own it. We have to own it. Somewhere out there is a balance. We should be trying to do it [deal with crime] not just tough, but right.”

Pat Nolan, an influential Republican leader who served federal prison time in the 1990s on a racketeering charge, participated on a CPAC panel. “Prisons are for people we are afraid of, but more and more we are filling [them] with people we are mad at,” he stated. He also stressed a distinction between acts that are criminal and those that are inherently evil, implying the latter should be a priority for lawmakers. To illustrate that point he asked, “Why on Earth are we going after street dealers?,” adding that drug traffickers who operate across international borders and state lines should be the focus of law enforcement efforts.

While Republicans are increasingly trying to take credit for criminal justice reform, that doesn’t mean Democrats are more deserving of such credit because they, too, have benefited from pushing tough-on-crime policies over the past several decades. Rather, reforms have typically been accomplished through long-term efforts by non-profit organizations, grassroots advocates and faith-based groups, which have worked to influence members of both major political parties to improve our nation’s justice system one small step at a time. Other reforms, particularly those related to prison conditions and prisoners’ rights, have largely been achieved by civil rights attorneys through lengthy and hard-fought litigation.



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