Conservative Criminal Justice Reform: End Mandatory Minimums?

“We’d much rather see people order their own lives than have government do it for them. No conservative should be happy to see large numbers of his compatriots under direct government control.” – Rachel Lu

President Obama made news this week by commuting the sentence of 46 non-violent federal drug offenders. But he’s not the only one departing from the “tough on crime” stance that dominated both sides of the aisle in the 80s and 90s. Today both sides of the aisle are thinking of swinging the policy pendulum back in the other direction.

Is this an area where conservative reforms are desirable and where conservative can lead? The Federalist’s Rachel Lu lists 7 reasons why conservatives should stand for reforming America’s criminal justice system, including fiscal and personal responsibility and our support for stable families and freedom.

Of course, true conservatives believe in justice, accountability and moral order, as well as public safety. Are there ways in which Americans can be as safe or safer as a result of reform?

There are at least a couple areas in which conservatives could consider reform: mandatory minimum sentencing and marijuana laws. I’ll discuss the first of these here.

Mandatory minimum sentence recently has become a topic of conversation on the Right. Rand Paul has called for reform, co-introducing the Justice Safety Valve Act of 2015, which would apply to all federal mandatory minimums. Mike Lee co-introduced the more narrowly tailored Smarter Sentencing Act of 2015.

Newt Gingrich supported mandatory minimum sentence reform during his presidential run in 2012, after writing the following in an op-ed in 2011:

There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential… We can no longer afford business as usual with prisons. The criminal justice system is broke, and conservatives must lead the way in fixing it.

Rick Perry closed three prisons while governor of Texas. Even John Boehner is on record as being for sentencing reform.

Mandatory minimum sentencing is the requirement that certain laws be punished by a minimum amount of prison time. If a lot of people are convicted of crimes that call for long sentences, it can result in a large incarcerations rate over time, which means more prisons are built and maintained. That costs money – hence why Rick Perry touted the fact that he closed the prisons in Texas.

Spending a lot of money in an effort to keep dangerous people out of society may very well be a worthwhile trade-off, one that liberals have a hard time understanding. As Thomas Sowell has mentioned from time to time, liberals have difficulty understanding why we might have high numbers of people in prison at the same time as having low rates of crime.

That said, The Washington Post’s Reid Wilson reported that Texas’ reforms had saved the state $3 billion as of late-2014. How was Texas’ system reformed? Legislators knew they couldn’t do away with mandatory minimums without being accused of going soft on crime.

“[I]nstead of building new prisons, Wilson writes, “[They] built a treatment system.” Inmates who violated parole would stay in the treatment facilities instead of the more expensive prisons. This is intended to “[get] an offender’s attention without locking them up.”

Furthermore, some people who suffered from mental illnesses were able to avoid jail by particiating in pre-trial diversion programs which were “overseen by officers who specialize in mental health and drug treatment.” Wilson summarizes:

Crucially, the reforms gave prosecutors who recommend sentences and the judges who impose them a third option besides prison or parole…

For anyone concerned that crime rates must necessarily rise if prisons are closed and the incarceration rate drops, an article in US News and World Report states, “In the last five years, the Lone Star State’s imprisonment rate declined by 10 percent, while crime has dropped 18 percent.”

The piece goes on to note that “states that have recently sought to cut their incarceration rates have seen their crime rates drop by a greater amount than others where prison populations have expanded.” Correlation is not causation, but it at least shows that crime can drop alongside incarceration rates.

On the other hand, some reports show that mandatory minimum sentencing laws contributed to the drop in the overall drop in crime in the 1990s.

Evan Bernick and Paul Larkin at the Heritage Foundation make a great point:

[T]he arguments against mandatory minimum sentences are, at their core, just a sleight of hand. The principal objection to mandatory minimum sentences is not that they are mandatory, but that they are severe or that they are required for drug offenses. No one would object to a mandatory 30-day sentence for possession of heroin or a mandatory one-year sentence for rape… Critics are concerned less about the mandatory nature of federal sentences than they are about their length and their use in drug cases.

I suspect that many opponents of mandatory minimum sentences would willingly concede that this is indeed their point, while maintaining their opposition at least until some other way of ensuring less severe sentences those cases were found.

Additional arguments against doing away with mandatory minimums include the potential for discrimination in sentencing if judges are given too broad discretion, as well as the possibility that the sentences will become too lenient. Public policy could find ways around especially the latter problem, but it must take them into account first.

And that is the whole point of the conversation now: if punishment is too harsh or does not sufficiently take into account the possibility of repentance and the potential of human beings who are willing to turn their lives around, it must be reformed.

At the same time, if the arguments are correct, it means that the “tough on crime” movement swung the pendulum too far in the direction of punishment and away from lenience. A reform movement that isn’t careful could swing it back too far in the other direction and thereby not punish or deter crime and endanger the public safety.

What are the solutions currently being considered by Congress? Again, two of the major pieces of legislation aimed at reforming mandatory minimum sentencing are the Justice Safety Valve Act and the Smarter Sentencing Act.

The former allows judges to waive the mandatory minimum whenever that term does not fulfill the goals of punishment and other sentencing criteria, such as: to keep the public safe, prevent unwarranted sentencing disparities between similarly-blameworthy offenders who commit similar crimes, and to deter others from committing crimes.

The latter would require courts to ignore the mandatory minimum in drug-related cases if the defendant had no more than one prior criminal history point.

Both the federal and state governments could also consider reforms like those instituted in Texas.

Without a doubt, justice must be served and public safety and order maintained. However, is it necessary that a man who commits a non-violent drug offense in his 30s be required to stay in prison until his 60s?

Putting people in prison, the majority of whom are males, often means disrupting families, especially minority families. Because children from broken families are more likely to fall into crime themselves, it can become a cycle.

There is no avoiding punishing crimes, including with incarceration, and neither should there be. However, are the human costs from the loss of individual potential, as Gingrich mentioned, to family breakdown too high to justify long sentences for non-violent crimes? This is the sort of question that should at least be discussed.