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June 21, 2013

"As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"

New approachThe title of this post is the headline of this lengthy new Wall Street Journal article appearing on the paper's front page.  Here are excerpts (with two lines emphasized for subsequent commentary):

Weeks after his election as Georgia governor in 2010, Nathan Deal was pulled aside by a conservative state lawmaker with urgent business to discuss.  Rep. Jay Neal, a small-town pastor, said he had the seeds of a plan to cut Georgia's swelling prison population, which was costing taxpayers over $1 billion a year. The governor-elect didn't let Mr. Neal get far.

Georgia Gov. Nathan Deal has led the drive to reduce prison populations in his state. "The minute I mentioned what I wanted to do, he jumped in with what he wanted to do," Mr. Neal recalled. "And it turns out we were talking about the same thing."

That pairing of a pastor with a former prosecutor, both Republicans, helped pave the way for dramatic revamping of Georgia's criminal code.  New rules enacted over the past two legislative sessions are steering nonviolent offenders away from prison, emphasizing rehabilitation over jail time, and lessening the penalties for many drug and property crimes.

Georgia is the latest example of a Republican-led state drive to replace tough-on-crime dictums of the 1990s with a more forgiving and nuanced set of laws. Leading the charge in states such as Texas, Ohio, Kentucky, South Carolina and South Dakota are GOP lawmakers — and in most cases Republican governors — who once favored stiff prison terms aimed at driving down crime.

Motivations for the push are many.  Budget pressures and burgeoning prison costs have spurred new thinking.  Some advocates point to data showing that harsh prison sentences often engender more crime.  Among the key backers are conservative Christians talking of redemption and libertarians who have come to see the prison system as the embodiment of a heavy-handed state.  And crime rates are falling nationally, a trend that has continued in most of the states putting fewer people in jail.

The movement also dovetails with the quest of some Republicans to soften the party's edges and to plunge into new policy areas that affect the poor and the disadvantaged. The initiatives have drawn praise from groups that aren't often allied with the GOP, including the National Association for the Advancement of Colored People and the American Civil Liberties Union.  The result is some unlikely bedfellows, with the conservative American Legislative Exchange Council working alongside the ACLU.

"Criminal justice is the area where conservative thinking has most changed with the times," said Eli Lehrer, a former GOP Senate staffer and conservative activist in Washington, who has written extensively on the push for new sentencing rules.  He describes the push as "the most important social reform effort on the right since the rise of the pro-life movement in the 1970s."

Just over half of the states have embarked on criminal-justice overhauls of varying scope over the past five years, with 19 of those efforts led by Republican governors or GOP legislatures and nine by Democratic governors or legislatures.  Some of the most aggressive moves have come in states, many in the South, with incarceration rates well above the national average....

The downturn has been particularly welcome in states that had projected a continued surge in prison numbers.  Ohio, which was bracing for an inmate population of over 57,000 by the end of the decade, has seen its number fall by nearly 1% a year since 2009.

Changes to sentencing laws haven't sailed everywhere.  In Indiana, an aggressive push in 2011 by then Republican Gov. Mitch Daniels got watered down — and eventually abandoned — after it ran into opposition from prosecutors. GOP Gov. Rick Scott in Florida cited public safety last year when he vetoed a bill to cut the sentences for nonviolent drug offenders.

The conservative quest to rethink criminal sentencing and rewrite state penal codes got its start in Texas, when GOP lawmakers in 2007 balked at the need to build three new prisons to house an anticipated 17,000 more prisoners by 2012. They decided instead to revamp the state's probation system and boost funding for addiction treatment and rehabilitation by $241 million.

The state prison population has declined by nearly 6,000 inmates since 2008 after decades of rapid growth and during a time when the state's own population has continued to swell. In 2011, Texas shut a prison for the first time in state history.

Behind the Texas efforts stood a conservative local think tank, the Texas Public Policy Foundation, and one of its top donors, a wealthy oil man from Odessa named Tim Dunn. Mr. Dunn paid to establish a center within the foundation in 2005 to focus on overhauling the state's criminal code. An evangelical Christian with a strong libertarian bent, Mr. Dunn said he watched for years as Texas' crime rate continued to climb even while its prison population swelled. "I had come to see our justice system as imperial, as intent on maintaining the authority of the king. It was no longer communal or restorative," he said.

Under the directorship of Texas lawyer Marc Levin, the policy foundation became the hub of a national movement as requests for legislative help poured in from other states. The center adopted a formal platform in early 2010 and took its campaign national under the name Right on Crime.  It soon had the backing of a long list of conservative supporters, among them former Florida Gov. Jeb Bush, former Reagan Attorney General Ed Meese, former drug czar Bob Bennett and David Keene, until recently president of the National Rifle Association.

The group and its Republican followers are sensitive to charges that they are going soft on crime, "that we want to hug a thug," as Mr. Dunn puts it.  But they insist they are moving to correct a system that tilted too far toward punishment, without any gauge for success or failure. State prison populations swelled 700% between 1970 and 2009, from 174,000 inmates to 1.4 million.

Legislatures across the country have rewritten their criminal-justice codes. A few Democratic governors have jumped in, including Arkansas's Mike Beebe and Hawaii's Neil Ambercrombie. New York and Connecticut made changes even before Texas did.  But "on balance, it has been conservatives who have been out front," said Adam Gelb, who directs a national criminal-justice initiative at the Pew Charitable Trusts, which has worked on initiatives across the country.

In many states, former law-and-order prosecutors and judges have led the effort. In others, pastors-turned-lawmakers have jumped in. Many describe eureka moments that altered their views....

For Ohio Republican state Sen. Bill Seitz, a turning point came in the late 2000s, when he watched the voters in his county, which includes Cincinnati, twice vote down levies to build a new jail. "It became all the clearer to me how we pass tough sentencing laws with a blind eye to the fiscal impacts," he said.

In Georgia, Gov. Deal and Rep. Neal arrived at their partnership via similar and very personal paths . Mr. Deal says his evolution came about largely on the streets of his hometown of Gainesville, an hour's drive north of Atlanta.  For nearly a decade, his son Jason has presided over a drug court designed to rehabilitate addicts charged with felonies and to keep them out of prison.  The future governor often went to graduation ceremonies where recovering addicts would tell their stories. "They all have their own stories, but a common thread runs through all of them," Gov. Deal said. "They had lied. They had stolen. They had alienated their spouses, their parents, their siblings. But they were given a second chance, and they had been rehabilitated."...

Supporters of the changes in Georgia and other states note that elected officials such as Gov. Deal have done little to publicize their efforts, much less campaign on them.  Ben Jealous, president of the NAACP, sees that as a missed opportunity. "This is an area where Republicans can really connect with black voters," he said.

Gov. Deal acknowledges there are risks in championing prison changes. "You always worry about being accused of being soft on crime," he said.  But through a spokesman he said he now "very much wants to be seen as the face of prison reform in this state."

I concur with the sentiment emphasized above that the prison/sentencing reform movements on the right are a very important and consequential social issue shift for the GOP, and one that could have a profound long-term impact on the fate and fortunes of both political parties in the decades to come.  However, as suggested by the second highlighted point, unless and until GOP politicians believe they can secure votes and not just save money and lives through reform, this reform movement will not likely become as transformative as it might otherwise could be.

Some recent and older related posts:

June 21, 2013 at 09:10 AM | Permalink


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Some Democratic governors have assumed a dogmatic posture to assert the rights of convicted murders, i.e.
Chafee, Kitzhaber, & O'Malley.

If Republican governors assume a humble posture to advocate "steering nonviolent offenders away from prison", e.g.
Deal, Haley, & Perry, it will behoove informed voters to support or oppose.

Posted by: Adamakis | Jun 21, 2013 9:38:40 AM

"[U]nless and until GOP politicians believe they can secure votes and not just save money and lives through reform..."

What evidence is there that "reform" (which is the opaque word for "releasing criminals") will "save lives?" Really, where is it? How many times is this fact going to get walked past: Literally thousands of lives have been saved over the last twenty years as we have INCREASED imprisonment. The murder rate has gone steadily down almost every year that imprisonment has gone up. And the absolute number of murders is 10,000 fewer now than it was 20 years ago, when the prison population was much lower.

Does anyone disagree with that? On what basis? Here are my figures: http://www.disastercenter.com/crime/uscrime.htm

Where are yours?

And please, let's not hear this stuff about causation vs. correlation. First, it's already been refuted. Second, even if it were true, it would undermine the "reform" advocates at least as much as it would help them: If the rate of imprisonment has no causal relationship to the murder rate, then it's oxymoronic (or just plain moronic) to say that lowering the rate of imprisonment will lower the rate of murder. Absence of causation is absence of causation whether it be up or down.

Not that it matters. Everyone but hard core ideologues understands that, when you put more violent people in prison and keep them there longer, you get less violence. When you put them back, you'll get more (as the California experience is already starting to show).

Could we please introduce some basic truth into this debate?

Posted by: Bill Otis | Jun 21, 2013 11:47:07 AM


Please explain the "California experience". I think we are originating a new anti-criminal coddling - tough on crime platitude and want to be on the forefront.

I thought stopping the use of leaded gasoline was the primary reason for the decline in crime over the time frames you cite. Also, what is (in your mind) the difference between "crime" and "violent crime". Murder had been going down on a year to year basis but imprisonment still had been going up until the dollars started to dry up. At what point does imprisonment become counter-productive or does it never?

Posted by: albeed | Jun 21, 2013 2:24:15 PM

Mr. Otis,

I always enjoy your perspective on sentencing issues, but in this case you are misreading your opponents' points and overstating your own.

1) I can't speak for the other commenter, but it's possible from the context that 'saving lives' refers to 'saving' the lives of nonviolent offenders from the life-disrupting effects of long prison sentences and collateral consequences that usually follow.

2) If the corrolation/causation argument has been disproven, you are welcome to provide some evidence.

3) Even if the increased incarceration rate has been a factor in the lower crime rate - and I believe it has - that hardly proves that every instance of incarceration has contributed to that improvement. If incarceration has increased, say, 1,000 percent, does that mean this country wouldn't have seen the lowering of the crime rate if it had merely increased 900 percent?

4) You make reference to 'putting violent people in prison.' By implication, you seem to be stating that the prison reform movement is eager to release such violent offenders to the streets as quickly as possible. As the linked Wall Street Journal story makes clear, most of the movement is concerned with steering nonviolent offenders away from the prison system.

Posted by: Tyler | Jun 21, 2013 3:15:29 PM

Tyler --

1. Words have meanings. To say that a person's life has been saved is to say that he has been rescued from death. It's an old and cheap stunt to use metaphorical language whose intended jarring impact melts away when questioned.

2. I have provided the evidence of imprisonment's substantial contribution to crime reduction at least a half dozen times on this site and on Crime & Consequences. But I'll give one sample, a May 2011 WSJ article by the eminent criminologist James Q. Wilson: http://online.wsj.com/article/SB10001424052702304066504576345553135009870.html

3. If, as you agree, imprisonment has helped reduce crime, then going in reverse on imprisonment means we'll be going in reverse on crime reduction. I don't see any acknowledgement of this very important fact in today's article. Is that honest?

4. I am well aware of the claim that that only non-violent offenders will be released, and I am also aware, and I think you should be, of how that has worked -- or more correctly not worked -- in California's realignment program. That too has received extensive coverage on C&C.

I addition, the phrase "non-violent offender" is used tacitly to imply "non-harm producing offender," but that implication is false. A guy who sells a 16 year-old his overdose supply of meth is "non-violent," as is the guy who swindles some 70 year-old couple out of their life savings, as is the 50 year-old who sweet-talks a 14 year-old into having sex. But all these people create terrible harm -- harm that the prison "reform" crowd wants to sweep under the rug by their intentionally deceptive use of "non-violent."

5. I asked for figures to rebut the ones I linked, and I see none are provided.

6. The pre-packaged mantra that the prison population consists of "low level, non-violent" offenders, and that these are the only ones anyone has an interest in releasing, is getting really, really tired.

First, that is not the prison population, and second, the ideological anchor of prison "reform" is that America is an evil nation that, out of its mean-spirited, punitive and Puritanical roots, metes out excessive sentences ACROSS THE BOARD. The plain implication, sometimes more-or-less obscured but increasingly said out loud, is that sentences across the board should be cut.

If you think I'm exaggerating, just read the comments section of this site, plus many of the posted articles from SSRN, for a week or two.

Posted by: Bill Otis | Jun 21, 2013 5:42:56 PM

Bill, my reference to "save lives" was meant to tie into the evangelical component of the GOP move toward reform which is represented above by discussion of Rep Neal and Tim Dunn and appears in the work of Pat Nolan with Prison Fellowship and others. In context, the point concerns the fact that some in the GOP (reasonably) believe that prison reform, if done right, (1) can/should save money (see Ohio's own terrific Bill Seitz quoted above), and (2) can/should save lives of offenders, and their families, and perhaps others.

More broadly, the fact that murder rates keep going down in NY and Texas in recent years, even as they have reduced their incarceration rates, provides as much circumstantial evidence of life savings as does your (now dated) evidence via Wilson/Levitt et al. from the Clinton-Bush years. But, again, my point here was not to get into the empirics, but rather to note that even as some members of the GOP come to believe there are fiscal and moral benefits from prison reform, they are unlikely to help bring massive change unless and until they see political benefits, too.

Got it?

Posted by: Doug B. | Jun 21, 2013 6:11:22 PM

It should not surprise anybody that there is very little support for prison reform as a purely fiscal matter. If government is going to spend money on anything, protecting society from criminals and enforcing the criminal law is something that most reasonable people on the left and the right agree (whether you basic political philosphy is Lockean, Burkean, or Rawlsian).

For the most part, where reform has managed to achieve support, it has been when the alternative to incarceration are perceived as more effective (e.g., treatment programs for non-violent drug users)with the financial savings being a secondary consideration.

Posted by: tmm | Jun 21, 2013 6:18:22 PM

Doug --

You can have your 2 states and I'll take 48. This is assuming the California experience is as you portray it to be, which, as Kent has shown, is a shaky assumption.

As to political benefit: There should be a political benefit to politicians who improve public safety. The idea that we improve public safety by putting criminals back on the street is beyond bizarre. Two generations of evidence shows that when we go light on prison we get more crime, and when we tighten up, we get less.

I also see that you give no response to my point that the "reform" crowd is trying to pull a fast one by talking about "non-violent" criminals when, in fact, there is an army of "non-violent criminals" who do tremendous harm.

And in that sense, you bet, I've "got it."

P.S. There's a difference between saving lives and saving souls, but since I hope to keep the discussion away from being a Jimmy Swaggart clone, I'll stop with that.

Posted by: Bill Otis | Jun 21, 2013 7:30:47 PM

Reducing crime can also be done by reducing the criminal code. Let's do it for goodness sake. Prison populations have been going down since 2010 - minutely. At the same time violent crime has gone down.

I know there would be many unhappy Law Enforcement and Justice Department employees that would need a bit of employment rehabilitation, but maybe there would be jobs that would be even more satisfying and useful and provide for more public safety.

I do hate paying taxes knowing that they contribute to the incarceration of non-violent - and there are non-violent - life style and regulatory offenders. The danger that would result from releasing these unfortunate folks would only be to those whose jobs depend on the complicated and irrationl criminal code.

Posted by: beth | Jun 21, 2013 11:10:41 PM

beth --

We can reduce crime to zero by eliminating the criminal code entirely, but the point is not to reduce crime merely in the formal or linguistic sense. The point is to reduce socially destructive behavior, much (although not all) of which is presently denominated as crime.

You and I do agree on at least one important thing, to wit, that regulatory and non-mens rea crimes ought to be cut back or possibly eliminated.

P.S. When I left DOJ, I achieved "employment rehabilitation" by becoming the unfortunate object in the law school punchbowl.

Posted by: Bill Otis | Jun 21, 2013 11:29:25 PM

Gosh Bill - that is unfortunate, but I trust that rehabilitation wasn't too painful.

I don't suggest eliminating the criminal code entirely, but we just look so darn stupid about it in so many ways. I'd probably invite about 1/3 of Federal inmates for dinner if they were out.

I'm not naive, and I do know that there are very dangerous people there who should not be out, perhaps ever.

Posted by: beth | Jun 22, 2013 12:25:50 AM

I think crime is more complicated than "enact policy X, get outcome Y." There are so many variables that can affect the crime rate. I think trying to find causation as opposed to correlation is important, otherwise, what would you do with a statistic like this: the Pew Center on the States found that all 17 states that cut their imprisonment rates over the past decade also experienced a decline in crime rates? Should we act to cut imprisonment rates based on that "record"?

Posted by: Thinkaboutit | Jun 22, 2013 1:51:04 AM

Prof Berman has to address the fictitious nature of 95% of adjudicated charges, before calling fo the release of non-violent offender, non mens rea, malum prohibitum criminals.

There is a simple solution which the lawyer will never consider. Classify criminals as violent or non-violent based on their indicted charges, not their adjudicated charges.

The other real world consideration that will never be considered by the lawyer? There is no specialization in crime. The serial killer is a burglar or a parking ticket scofflaw with warrants. The drug dealer is a mass murderer of competitors.

Posted by: Supremacy Claus | Jun 22, 2013 7:48:10 AM

Bill, on the "non-violent" point, you should realize and discuss wisely the reality that this is the catch-phrase for "less serious and less dangerous." I know you think that there are very few people in prison (especially federal prison) who did not commit serious crimes and who are not dangerous, but I know that there are at least some who could be released without any real impact on public safety.

I know you enjoy stressing the soft-spots of the modern reform nomenclature, but as everyone comes to see that the toughness pendulum has swung too far, your eagerness to defend the status quo with continue to make your view more and more of an outlier.

Posted by: Doug B. | Jun 22, 2013 10:11:44 AM

Thinkaboutit --

"...what would you do with a statistic like this: the Pew Center on the States found that all 17 states that cut their imprisonment rates over the past decade also experienced a decline in crime rates?"

I'd do several things with it. First, I'd want to see the study itself, rather than a one-sentence summary. Second, I'd want to know who sponsored it. Third, I'd remember that the Pew conclusion applies to one-third of the states, and wonder why you don't mention what was found about the much larger number of remaining states. Fourth and relatedly, I'd bear in mind the well known free-rider phenomenon, in which a minority reaps spillover benefits from the practices of the majority. Fifth, I'd notice that what got compared was crime RATES with imprisonment RATES, which is interesting but not the main point. The main question is whether, when the actual number of people in prison goes down, does the actual number of crimes go up or down? Prison "reformers" themselves understand this quite well, as they talk (in outraged tones) about the actual number of people in prison having dashed past the 2,000,000 mark. Sixth, I would ask myself whether it can actually be the case that there is no causal relationship between increased imprisonment and reduced crime when the numbers are as stark as they are -- a massive increase in incarceration over the past 20 years together with a massive decrease (roughly 4,000,000 fewer per year) in crime.

Do you really think these two things have nothing to do with one another?

In answering that, you might want to ask yourself this first: The human race has thought since the dawn of civilization that there is a causal relationship between crime and punishment. Have we been wrong all this time?

Posted by: Bill Otis | Jun 22, 2013 10:25:57 AM

"You (Beth) and I (Bill) do agree on at least one important thing, to wit, that regulatory and non-mens rea crimes ought to be cut back or possibly eliminated."

I let out a shriek of joy on reading those unexpected words from Bill Otis.

You've come a long way, Bill. Apparently your time in the punch bowl has been good for you.

Posted by: JohnK | Jun 22, 2013 11:42:45 AM

"There is a simple solution which the lawyer will never consider. Classify criminals as violent or non-violent based on their indicted charges, not their adjudicated charges."

Supremacy, you put a lot more stock in the significance of indictments than I do. From what I've seen (including several years of covering courts for daily newspapers), grand juries pretty consistently buy whatever incendiary rhetorical flourishes prosecutors apply to charging narratives in order to put suspects in the worst possible light.

Certainly you've heard the ham-sandwich analogy.

What evidence am I missing that leads you to believe indicted charges are any more accurate than adjucated ones?

Posted by: JohnK | Jun 22, 2013 12:08:52 PM

Can't resist the urge to ask, Bill, what's your take on Nietzsche's advice to “Beware of all those in whom the urge to punish is strong.”

Posted by: JohnK | Jun 22, 2013 12:28:31 PM

JohnK: I have no urge to punish. I do not have a single retributionist bone. I only want to incapacitate. That is the sole mature purpose of the criminal law. Rehab is a joke. Retribution is from the Bible and unlawful. Restitution is hopeless since criminals have no assets, and their labor has a negative value. You are better off not hiring a criminal, since he will destroy your business. The general deterrence of others violates due process by punishing the person for the speculative future crimes of another the criminal has never met. Specific deterrence does not exist in antisocial personality disorder. It features presentism, impulsivity, fearlessness, and ultimate in selfishness.

There are 10 serious crimes for every prosecution, so the DA can pick only excellent cases. The career depends on success, so they pick solid cases, with crushing evidence. So most indictments are not frivolous. There is stacking, which can be ignored as part of the same single crime by a future prison reviewer.

Plea bargaining is complex process with lots of unpredictable elements. A lot goes into it. But consider a case in which I repeatedly stab my girlfriend, her being too slow with my cigarettes. She is so terrified, she refuses to testify, or to even press charges. She actually wants me back, and not going to jail because of my financial value to her, and her kids worship me as stepfather. The crime is serious, the guilt is self evident. But there is no case. You, the DA, offer me criminal trespass and assault (inducing fear in another). I accept the offer and three years.


Now, after 2 years, it is time to empty the prison. I have no dangerous crime, and my sentence is almost finished. I get high on the list of early release candidates, despite my being a crazy, ultra-violent paranoid m*****f****r, you would never want to meet.

Posted by: Supremacy Claus | Jun 22, 2013 1:12:19 PM

No, Bill I don't think the human race has been wrong, but I also know that if 17 states reduced their prison population and their crimes rates fell, there must be other factors at work. I also know what Professor Levitt says. You used to quote him about the benefits of incarceration, but I don't think you will anymore given what he has said about the current prison population. I take the position that we can't have zero crime so a one-way ratchet doesn't work. When I was on the Hill and Clinton, et al kept proposing stricter air pollution requirements, we didn't and couldn't argue that the stricter requirements wouldn't make the air cleaner or make people healthier. We said there had to be a tradeoff. We insisted on cost-benefit analysis. I don't want people to die from dirty air or bullets, but I think we need to be consistent on the marginal benefit we get from stricter rules. After all, we could have less traffic fatalities if all speeders received 10-year mandatory minimums.

Posted by: Thinkaboutit | Jun 22, 2013 2:34:47 PM

Argh, Doug--you are a sentencing law prof, and you don't understand that falling rates of incarceration may be associated with a drop in crime?

Stiff punishments have an in terrorem effect. If punishment is swift and sure, I would expect that incarceration rates would drop.

I, by the way, wholeheartedly agree that a prison bed is a scarce resource. And I think that there are life-ruining prosecutions brought that probably shouldn't have been (e.g., Western Va. hunter discussed on this blog a year or so ago). I just don't trust a bunch of 'rat politicians and their soft-on-crime allies to protect public safety. There are a lot of appalling crimes committed by thugs who should have gotten harsh sentences for their previous crimes. Let's fix that problem too.

It's funny--the libs in here vent their spleen on Bill Otis--but have very little to say about the 'rat AG. That particular 'rat likes to get 1%ers off (Marc Rich). He also likes to talk about how there are people who don't need to be in prison. So Mr. 'rat AG---start naming names. Where is the outrage, libs?

Posted by: federalist | Jun 23, 2013 10:00:09 PM


I don't know of anybody who doesn't think "(high) rates of incarceration may be associated with a drop in crime."

I only know of one who asserts such rates are the primary cause of lower crime rates.

Posted by: JohnK | Jun 27, 2013 5:29:19 PM

There are many types of the crimes are there, as well for every one forgiving also there. If we entered in any crime, then we have to consult the good lawyer, those who knows the tactics in that case. Definitely he can take you outside from that case.

Posted by: georgeisrel | Jul 1, 2013 2:23:08 AM

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