Once a U.S. political issue central to Republican campaign attacks against Democrats, the push to be “tough on crime” has transformed -- from statehouses to Washington -- into being “smart on crime.”
The shift -- driven by economic and social costs -- has created unlikely political allies, with Democrats and President Barack Obama’s administration lining up with Republicans. Both sides are searching for alternatives to a criminal sentencing system that has the U.S. prisons housing 1.5 million inmates.
“There are better and far less expensive ways to do it and I think that’s what’s persuading people -- Republican, Democrat, conservative or liberal -- to go in that direction,” said former Massachusetts Governor Michael Dukakis, the 1988 Democratic presidential nominee whose campaign was targeted for Republican attacks that he was soft on crime.
The rare partisan agreement on the issue in Washington is the result of a confluence of events and data, including the explosion in federal spending on the U.S. prison population and the growing body of research that shows diversionary programs and alternatives to incarceration serve as more effective deterrents to repeat offenses.
Attorney General Eric Holder, in a speech yesterday detailing the core tenets of the Justice Department’s proposals to address the issue, commended members of both parties for coming together to deal with what he described as the racial and financial inequities that have grown as harsher prison sentences have been imposed over the past 30 years. The U.S. legal system, Holder said, is “in many respects broken.”
He ordered Justice Department prosecutors to avoid bringing charges that carry mandatory minimum sentences against nonviolent drug offenders with no ties to criminal organizations. Holder also announced revised criteria for sentence reductions, expanding the circumstances to include elderly inmates and certain inmates who represent the only caretaker for dependents.
The Justice Department initiative follows an eight-month effort behind closed doors to review and draft proposals to reshape the system. The result was “monumental,” said Alison Siegler, a professor at the University of Chicago Law School. Its release now is driven in part by Obama not having to worry about running for re-election, she said.
“I was really struck by the acknowledgment that the system is broken and that the problems grow so deep,” Siegler, the founder and director of the Federal Criminal Justice Clinic, said in a telephone interview. “It’s pretty rare to hear that kind of frank acknowledgement.”
Holder seized on the growing Republican support behind changes, citing the successful diversionary programs for drug offenders run by Republican governors and calling legislative moves by Republican Senators Rand Paul of Kentucky and Mike Lee of Utah “promising.”
For Holder, who has tangled with Paul over U.S. drone- attack policy and faced a barrage of calls for his resignation over other disputes with Republican lawmakers, his alliance with some of the party’s members of Congress and governors is new.
The effort Holder is helping push, though, hasn’t been embraced by everyone.
House Judiciary Committee Chairman Bob Goodlatte, a Virginia Republican, said that while he agreed with Holder on “many of the policy issues,” he differed with the attorney general’s decision to make changes without new laws.
“If Attorney General Holder wants to reform our criminal justice system, he should work with Congress to do so,” Goodlatte said.
Paul, who along with Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, has proposed giving federal judges more sentencing flexibility, called the decision by the Obama administration to move on the issue “a welcome development.”
“Now the hard work begins to change the law to permanently address this injustice,” he said.
Paul and Lee, both of whom won their Senate seats in 2010 and brought with them libertarian leanings, have joined the likes of anti-tax advocate Grover Norquist, former Florida Governor Jeb Bush, former Attorney General Edwin Meese and former National Rifle Association President David Keene to support changing a prison system that cost the federal government more than $80 billion in 2010.
Those four are among a group of self-described conservatives who have signed onto the “Right On Crime” statement of principles, which advocate more focus on alternative programs and rehabilitation and a move away from incarceration for those not considered the worst offenders.
“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending,” say the principles, drafted by the Texas Public Policy Foundation.
The change in attitudes has been percolating through states before reaching the federal level. Mark Levin, the Austin, Texas-based director of the Center for Effective Justice, pointed to multiple Republican-led states, sparked by changes made in Texas, that have cut criminal justice spending while also reducing crime.
Holder, in his speech, pointed to these efforts as a model, after each played a role in driving the state prison population across the country down by more than 29,000, or 2.1 percent, in 2012 from the year prior. During that time the federal prison population increased by almost 1,500 inmates.
The Republican drive to make changes is notable for a party that can lay claim to spearheading the “war on drugs” campaign in the early 1970s and, in 1988, used the issue of prisoner releases and furloughs against Dukakis in his unsuccessful White House campaign against Republican George H.W. Bush.
Led by the late Republican campaign operative Lee Atwater, Bush’s campaign seized on the case of Willie Horton, a convicted murder who was allowed out of prison on a weekend furlough designed to aid the reintegration process. While out, Horton raped a woman. The highlighting of the crime by Bush and his allies proved devastating to Dukakis, who at one point had a double-digit lead in some polls.
Dukakis said research showing that harsh sentences did more harm than good was not readily available during his presidential campaign -- something that has changed in recent years. He also said the financial strain of incarceration, particularly at the state level, has helped drive the push for changes.
When states look at proposals “that seem to work a hell of a lot better at much less cost, than I don’t care where you’re coming from ideologically, it seems to me we ought to be exploring those kinds of things, and that’s what’s happening,” Dukakis, a professor at Northeastern University in Boston, said.
On the federal level, Leahy’s panel will convene next month to hold a hearing on the issue and House lawmakers from both parties have formed a task force to study the sentencing system and release a report that will include recommendations.
Siegler, who specializes in criminal procedure and federal sentencing, said she is “cautiously optimistic” that lawmakers will move forward on broader proposals.
“The fiscal issues are hitting people and helping them recognize that this is a real problem,” she said. “We economically cannot continue to incarcerate at the rate we’ve been going and something has to give.”
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