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June 13, 2016

Notable new commentary at The Federalist talks through conservative support and opposition to federl statutory sentencing reform

Rachel Lu, a senior contributor at The Federalist, has this interesting new commentary under this lengthy headline: "We Need Sentencing Reform And This Bill Is A Good Start: The past two decades have seen ramped-up sentences for drug criminals, which have cost us billions in taxpayer money, while yielding few benefits. Let’s take this opportunity to do better." The piece usefully goes beyond the usual superficial advocacy for federal sentencing reform and digs into the debate within conservative circles about whether to support or oppose the SRCA. I recommend the piece in full, and here excerpts (with links from the original):

What’s really going on with the federal Sentencing Reform and Corrections Act? This bipartisan legislation has been in the news lately, prompting a strange and confusing exchange between conservatives who support justice reform (notably Vikrant Reddy and myself) and critics of the movement (Sean Kennedy and Jeffrey Anderson)....

Donald Trump has been comparatively quiet thus far on the crime issue. That may reflect the fact that some of his likely vice presidential candidates (most notably Newt Gingrich and Nathan Deal) have already established themselves in the pro-reform camp. Nevertheless, this initiative could still fall prey to the dreary realities of partisan base-beating. That would be sad to see, especially since justice reform is almost the only bipartisan issue we’ve got left in these bitter times.

Of course, for some that is itself a strong motive to kill the bill. They hardly even pretend to know or care about the content of the legislation itself.  Consider Jeffrey H. Anderson’s “What, are we the sort of people who work with Democrats?” rebuttal to my last essay for an example of this thinking....

[P]risons are beneficial primarily insofar as they keep dangerous people off the streets. That’s a huge benefit with respect to murderous psychopaths. Yet if we’re talking about minor, subsidiary figures in the drug trade, we should recognize they are easily replaced. Hitting small-time distributors or smugglers with decades-long sentences will not solve our drug problem.

Even recognizing those principles, it’s always best to be cautious about public safety. The Sentencing and Corrections Act is cautious. We certainly won’t be seeing the immediate release of thousands of drug criminals. Rather, the bill takes modest steps to soften some of the more drastic measures in federal drug laws.  Sean Kennedy’s recent missive cautioned against “rushing” conservative justice reform, but looking at the bill currently in front of us, I’m truly at a loss to imagine what might satisfy him if this does not....

If you’re unsure whom to trust in the justice-reform debate, consider this. Reform-minded conservatives have ideas, an agenda, and recent legislative accomplishments to their names. They’ve been elbow-deep in the relevant policy issues for many years now. By contrast, their critics can’t even seem to agree on the most fundamental point: is over-incarceration is actually a problem in America?

In many ways it’s unsurprising that this would be a fuzzy point for critics. Mass incarceration was the rock against which tough-on-crime finally foundered. For decades, conservatives called for tough, consistent sanctions as a response to rising crime and disorder. This approach did yield some benefits: crime fell through the ’80s and ’90s.

As prison populations exploded, however, the price tag likewise grew steeper, and the social effects of imprisoning about 1 percent of our population became ever harder to ignore. Crowded prisons are bad for any number of reasons. They’re miserable and unsafe (for guards as well as inmates), and they do a poor job of rehabilitating offenders.

Eventually, it became clear to policy-savvy conservatives that they needed a more multifaceted approach to crime control. Red states have been leading the way for years now in using data-driven methods to reduce incarceration without sacrificing public safety. Many of the same people and organizations have helped to craft and promote federal sentencing reform, eventually giving rise to the Sentencing Reform and Corrections Act.

As policy, it’s been an impressive effort. Politically, it requires a paradigm shift that some haven’t yet made. As the data pile up indicating that prudent reform is possible, William Otis has gone on defending large-scale incarceration, regularly repeating his maxim that a nation is judged not by its incarceration rate, but by its crime rate. That no-limit position is too drastic for most, so we see figures like Kennedy and Anderson taking softer but more confusing stances, vacillating between tough-on-crime rhetoric and vague complaints that the legislation in front of us is too quick, too drastic or too bipartisan.

Kennedy warns us, in the spirit of Otis’ critique, that the real problem with our society is the number of criminals, not the number of inmates. Then he goes on to imply that state-level justice reform has been healthy but that the federal bill somehow goes too far. (How? Why? What provisions would he change?)

Anderson implies that federal sentencing reform represents an irresponsible lapse of conservative principles, but then later concedes that some reform may be good, on the condition that we scrap the present bill and replace it with exclusively Republican-authored legislation. (Why would we do that when reform-interested conservatives have been involved in writing and promoting this bill?)

It’s hard to have a serious debate when critics are bringing so little to the table.  Through promoting successful state-level reforms, conservative justice reformers have demonstrated that they are prudent, cautious, and highly attentive to data.  Unless critics can offer something more substantive than dated political platitudes, we should trust that this statute is moving us a step in the right direction.

June 13, 2016 at 05:10 PM | Permalink


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