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August 17, 2012

Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?

The question in the title of this post is prompted by this recent op-ed in the Washington Times authored by Alan Mollohan and David Keene.  The piece is headlined "Left and right agree on criminal justice reforms; Congress should move with bipartisan consensus," and here are excerpts:

While Americans seem to be sharply divided along partisan lines when it comes to important domestic policy issues — take health care, immigration or the national debt, for example — in at least one area of national importance, conservatives and liberals are increasingly united: criminal justice reform.

With only 5 percent of the world’s population, America incarcerates 25 percent of the world’s jail and prison population, imprisoning individuals at a rate five times higher than comparable Western, industrialized nations.  During the upcoming fiscal year, the federal government would spend nearly $7 billion, a nearly $300 million increase from this year, under the president’s budget proposal to house prisoners and very little, comparatively, on investments to curb the deluge of prisoners entering the system.

Policymakers and opinion leaders from both sides of the aisle recognize that this rate of incarceration is not sustainable or wise and are increasingly rallying around the same common-sense solutions to improve public safety while saving money.  Prominent conservative leaders such as former Florida Gov. Jeb Bush, former Reagan administration Attorney General Edwin Meese III, and President of Americans for Tax Reform Grover Norquist all have called for an overhaul of the criminal justice regime.

Despite the growing bipartisan consensus in support of criminal justice reform, the federal government has done little in recent years to address the pressing issues of growing incarceration rates, prison overcrowding and recidivism....  The Senate Judiciary Committee recently held a hearing to address rising prison costs.  It’s promising that Congress is talking about the issues, but the time for talk is over — it is time for Congress to act, and it should look to states for the road map.

In several states, legislators have crossed the aisle to build consensus and enact reforms on a bipartisan basis, easily outpacing the federal government.  In tough-on-crime Texas, the Republican chairman of the state House Corrections Committee worked with the Democratic chairman of the Senate Criminal Justice Committee to shepherd through legislation in 2007 that increased drug treatment capacity and expanded diversion from prison for nonviolent, low-level offenders.  Similarly, the Georgia legislature unanimously passed a bill this year that diverts low-level offenders away from prison and, when appropriate, into drug treatment, reserving prison for dangerous offenders.  States such as Kansas, South Carolina and Ohio have enacted similar legislation.

Bipartisan reforms at the state level have proved to be socially and economically beneficial.... Instead of throwing good money after bad, Congress should follow the example of these states and take steps to curb federal prison population growth. Congress can start with proven solutions that reduce recidivism and give prisoners a second chance. One example is increasing the number of days that a prisoner can earn off his sentence for good behavior, called “good time credit.”  Congress also should implement programming within prisons that would increase the likelihood of prisoners’ success after release, such as more drug treatment programming, educational opportunities and vocational training, all of which have proved to be effective at reducing recidivism....

Congress also should consider who is incarcerated in federal prisons. Sensible people agree that violent criminals belong behind bars, but the reverse is often true as well — many low-level, nonviolent offenders do not belong behind bars.  The increased use of diversion programs, probation and other prison alternatives, all of which many states have successfully employed, should be systematically implemented by the federal government.

At a time when almost every issue seems to bitterly divide Democrats and Republicans, reforming our flawed criminal justice policies has produced consensus rather than division across our nation.  Congress ought to take advantage of this political consensus to develop and enact practical yet effective solutions and embrace criminal justice reform.

I am very supportive of the themes and the specific recommendations in this op-ed.  But, as even the most casual reader of this blog's comments likely knows, there still seems good reason to question the assertion that proposals to reform "our flawed criminal justice policies" tend to produce "consensus rather than division across our nation." 

Most critically, while a good number of prominent conservative leaders formerly in power have signed joined the Right on Crime movement, we are still waiting for a prominent conservative leader currently in power (other than perhaps Ron Paul) to champion these issues and causes.  Indeed, the Obama Justice Department lately been urging Congress to increase federal good-time credit and to create earned-time programming in an effort to reduce the size and growth of the federal prison population.  My understanding is that Republicans now in power in the House of Representatives will not even allow the most modest of proposed federal reforms to move forward.

As I have said more than a few times on this blog, I think it could be politically shrewd as well as inspiring if any conservative leaders now on the campaign train would start talking up these issues.  In particular, given Mitt Romney's selection of House budget guru Paul Ryan as his Republican ticket running mate, there could and should be some serious discussion of the costs and benefits of the federal prison population (which, according to the latest BOP weekly population report (available here),  now has 218, 261 federal prisoners).

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August 17, 2012 at 10:07 AM | Permalink


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The money angle makes it impossible not to re-examine our choices to criminalize so much behavior so harshly. I think the policy window remains open on this issue. It'll see how Texas reacts to the increase in parole you recently wrote about - maybe someone should survey the comments pages of TX newspapers reporting it.

Posted by: Gray R. Proctor | Aug 17, 2012 12:54:14 PM

It'll be interesting to see, I meant.

Posted by: Gray R. Proctor | Aug 17, 2012 12:56:00 PM

If there has ever been an article in which "smart on crime" meant something other than "let criminals out earlier and get someone else to worry about who they victimize then," please post the link to it.

Posted by: Bill Otis | Aug 18, 2012 9:04:23 AM

The reference is to Right on Crime. Right on Crime is led by Grover Norquist and I believe that it is under the umbrella of the Texas Policy Foundation in Austin Texas. It is a conservative organization. They are looking for ways to reform the criminal justice system.

Posted by: beth | Aug 18, 2012 10:41:05 AM

Bill Otis is right. Keep these miscreants in for as long as possible. And keep putting more and more in. Besides, there is no distinction between "non-violent" and violent offenders. They are both worthy of the same punishment. As for increasing "good time" why? Prisoners are expected to be good. If they are not, the prison sentence should be lengthened.

Posted by: not a lawyer 2 | Aug 18, 2012 1:31:50 PM

No. It is not true. All liberal and conservative lawyers are united on rent seeking pursuing.

Posted by: Supremacy Claus | Aug 18, 2012 1:35:29 PM

not a lawyer 2 --

Argument, if that is the right word, by strawman is weary this late in the day. If you have an actual thought, feel free.

Posted by: Bill Otis | Aug 18, 2012 5:53:23 PM

Not a Lawyer 2: 95% of adjudicated charges are fictitious, coming from a contract under duress, the plea bargain, after stacking and other prosecutor games. It is completely unknown whether any individual is violent or non-violent. Given this uncertainty, it is better to incapacitate all criminals. This view was validated by the 40% drop in crime across the board, as mandatory guidelines markedly increased incapacitation in the federal and state prison systems. This is the greatest lawyer achievement, and likely contributed to the economic boom of the 1990's.

Posted by: Supremacy Claus | Aug 19, 2012 1:25:16 AM

I don't know about specific reform proposals. But given the frequency with which I find myself agreeing with federalist lately (dare I say more often than not?), there is clearly something in the air.

Posted by: Def. Atty. | Aug 20, 2012 1:30:55 PM

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