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Why Are Republicans Signing on to Sentencing "Reform"?

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Sentencing "reform" is the name given to across-the-board sentencing reduction, both prospectively and (in the plans of "reformers") retroactively as well.  Although most often and most loudly advertised as intended for "low-level, non-violent" offenders, it will not be limited to that.  As "reformers" tend to admit toward the bottom of whatever press release they're putting out, they fully aim for violent criminals to benefit as well.  If there is any limit on the types of violence (e.g., child rape) they would exclude from these new benefits, I haven't heard about it.  I think the reason for this is simple: Once you see the criminal as the victim, and society as the (often racist) oppressor, it's only fair that all criminals get their reductions. America's rottenness, according to this theory, is not limited just to its treatment of drug pushers.

Recently, an increasing number of Republican legislators and candidates have been signing on to sentencing "reform," although their plans might be disappointing, in some ways at least, to the more vocal "reform" advocates.

The question is, why the change in some Republicans' outlook?  It's not a change in the public's outlook  -- I know of not a single poll in which the public prefers large-scale (or, indeed, any) sentencing reduction to preserving our gains against crime.  

Something else is afoot with Republican politicians.  What is it?
Several things, I think.

1.  False advertising.  As noted, "reform" is a euphemism for just one thing  -- "letting felons out earlier."  Everyone is for "reform," if that's all you call it without getting into detail.  By being more vague and more quiet about what the actual "reform" plan is, people not paying much attention can get pulled in.  

2.  Flat-out lying.  Increasingly, we hear that greater use of incarceration has had little or nothing to do with the generation-long, massive fall in crime.  That is simply false.  No neutral party comes close to believing it.  A leading Heritage Foundation spokesman (and longtime friend) John Malcolm has pegged the amount of crime reduction due to increased incarceration as between 25% - 35%.  
And Heritage, mind you, is one of  the leading think tanks supporting "reform."  But John and Heritage are unusually honest and balanced as the field of advocates go.

3.  Complacency.  The country has had relatively low crime for years now.  It has come to seem to be the natural order of things.  It isn't, as the crime-rampant Sixties and Seventies proved.  But complacency and its cousin, wishful thinking, are endemic in human life.

4.  Fatigue.  It's hard pushing against the grain of cultural mush, the press, academia, inside-the-Beltway interest groups, the organized bar, and an entire array of lobbyists from the NACDL to FAMM to SEIU to Cato.  

5.  The Republicans' perceived need to talk up "compassion."  In the upcoming election, the Republican Party has hard work to do.  It needs to deliver some unpleasant truths: The country is living beyond its means at home, is in retreat abroad, and is going to have to buck it up.  A society of entitlement and self-absorption is going to have to start becoming a society of responsibility and production.

That's a tough platform to win on.  My sense is that Republicans want to find something to help portray themselves as the Nicey Party, notwithstanding the basics that, in honesty, they're going to have to say. One (thoroughly misguided but tempting) way to sound like the Nicey Party is to talk about redemption, second chances, and the ever-popular "hand up."

Of course it's so much baloney.  The people who actually need a hand up are crime victims, not criminals.  But Republicans seem especially apt at missing this point.

6.  The growing influence of libertarianism.  Increasingly disgusted and alarmed by the growth of government, libertarianism has new strength.  Although there are several strains of libertarianism, one common idea is deep suspicion of, if not wholesale opposition to, the criminalization of drugs. Complete decriminalization is probably out of the picture, but decriminalization lite can be achieved through sentencing "reform," which is likely to be centered on, although hardly limited to, drug sentencing.

7.  The growing influence of evangelical Christianity.  We saw in the recent Nebraska death penalty repeal the force of the Christian tenet that we are all sinners in need of, and deserving, redemption.  I sense the same idea in the softening attitudes among some Republicans toward criminals and sentencing.

8.   False economy.  My friend Grover Norquist has been campaigning for years to reduce incarceration as a way of saving taxpayer money.  And it's certainly true that, for example, if we empty 10% of prison beds, we will save (roughly) 10% of the money spent on prison beds.  Of course it's equally true that if we empty 100% of prison beds, we will save 100% of the prison budget.  So why not let them all out?

The question is, as ever, at the margin, a subject as to which reasonable minds can differ.  The other question, as to which reasonable minds cannot differ, is that the increase in crime that will come with more released criminals is certain to create more expenses (not to mention human suffering) to crime victims  --  a number that the Save-Our-Taxes movement never seems to have much interest in either calculating or discussing.

9.  Distrust in government generally.  This goes beyond the libertarian distrust in government.  As I have explained in a previous entry, trust in government generally is at historic, and abysmal, lows. This has many sources, from scandalous acquittals to erroneous convictions; corrupt public figures like the just-sentenced Rep. Grimm (and numerous others); grossly abusive prosecutorial campaigns (like the one the Wisconsin Supreme Court just ended); police shootings and liberal lying about police shootings (the amount of lying about Officer Darren Wilson in Ferguson, Mo., was truly epic); and intentionally false promises starting right at the top ("if you like your health plan, you can keep.....").

Distrust in government eventually suffuses thinking about every government function, even those that are helping the public good (like law-driven and tougher sentencing). Generalized skepticism toward government is certainly part of the problem, especially on the Republican side.

10.  Money.  If you think politically active billionaires don't count in politics, I have this bridge I want to sell you.  On sentencing "reform" questions, billionaires George Soros (from the Left) and the Koch brothers (from the Right) have taken a strong interest.  Politicians, including Republican politicians, can't help but take notice.  And take notice they do.

13 Comments

I am trying to understand, Bill, what this post tells us about the growing chorus of GOP leaders who have come to endore and even advocate for sentencing reform --- leaders ranging from GOP members in Congress such as John Boehner and John Cornyn and Ted Cruz and Paul Ryan and Jim Sensenbrenner (and perhaps even Chuck Grassley?) to GOP Governors such as Chris Christie and Nathan Deal and Asa Hutchinson and John Kasich and Rick Perry.

I cannot help but read this post as a suggestion that all these GOP elected leaders are now, through their advocacy for sentencing reforms, engaging in "False Advertising" and "Flat-out lying"?

I also wonder if you think these are the same 10 factors that also playing a central role in Republican positions concerning other laws that arguably appear to be "helping the public good" such as Obamacare and marriage equality.

"I am trying to understand, Bill, what this post tells us about the growing chorus of GOP leaders..."

What it tells you is exactly what it says. You don't need to "try to understand." Just reading the words as written does the trick.

"I cannot help but read this post as a suggestion that all these GOP elected leaders are now, through their advocacy for sentencing reforms, engaging in 'False Advertising' and Flat-out lying'?"

Doug, you are wonderfully predictable. You take words I write, slightly re-arrange them, and ask whether I REALLY meant to write your new version.

The false advertising is a tactic by the LOBBYING GROUPS to front sentencing reduction for "low-level, non-violent" offenders, while much more quietly backing earlier release for violent thugs. By contrast, I have yet to see a single GOP Congressman or
Senator (with the possible exception of Rand Paul, and I tend to doubt that too) announce he's supporting early release for violent criminals. Could you quote that?

Same deal with the flat-out lying part. I really shouldn't have to explain this. Specialists in the field know full well that increased incarceration is a significant contributor to reduced crime. When people with that background (one might look to the Brennan Center) intentionally claim the opposite from what they know or easily ought to know, yes, that is lying. I wish you would denounce it, since lying does not really advance a healthy debate.

When people LACKING that expertise repeat what they've been told -- they think in good faith -- that is not lying. It's being gullible. Gullibility, like wishful thinking and complacency, is not a good thing, but it's hardly the same deal as lying.

Not that I have heard any GOP elected leader say that increased incarceration had no effect on reducing crime, either. Where was that?

Lastly, if this is your response to two of the ten listed factors, while not attempting to question the other eight, I think I'm going to consider this entry a success (indeed I might add to it with a couple of factors I thought of overnight).

Bill, I am just trying to understand full what this post says about "what is afoot with Republican politicians." Based on your further explanation, I now understand that your first two list items in bold meant as are descriptions of what you think lobby groups are doing. But the next two items in bold --- complacency and fatigue --- I surmise are feelings of the GOP politicians.

In addition, I am especially curious if you think #10 is the most significant reason you think so many leading GOP voices are now advocating against what you perceive to be in the public interest. I often hear complaints --- mostly from folks on the left --- that money too often leads politicians to advocate for corporate interests over public interests. I especially would like to hear more about which of these 10 factors (and others) best explain why it is all of a sudden so much easier to find GOP leaders advocating for significant criminal justice reform.

I am not "attempting to question" any of these factors, just trying to understand what you are saying about why so many GOP folks are advocating for reform.
And I am sorry if my follow up efforts to try to understand the meaning and implications of what you write here is predictable. Candidly, because there are so few other folks as vocal and as effective at you at explaining anti-reform sentiments, I am always eager to make sure I properly understand your perspective and what you are saying about others.

Just curious, Douglas.

Is answering "what you wish someone said" instead of what they "actually said" something they taught you or you teach your students in law school?

It's the tactic of someone wishing to win a debate with lawyer speak, not an honest debate.

Doug --

Before wandering too far afield, let me try to straighten out the basics.

By far main job of the criminal justice system in a modern democratic country is to suppress crime. The system in this country has done that with astounding success over the last generation. Millions fewer people every year suffer as crime victims than was the case just 20 years ago.

Is it truthful to call that system broken?

Yes or no, if you please. We can bat around details later, fine. For right now, yes or no?

I will echo the recent succinct comments of GOP Rep Jim Sensenbrenner to explain why I personally view our current sentencing system to be broken based on historically high rates of incarceration: "with our sentencing policy — we’re spending more, getting less, and destroying communities in the process." In this respect, by focusing on mass incarceration and its economic and human costs, I think it is entirely "truthful" to say the system is broken. So I do not think those who call the system "broken" are being untruthful

That said, I also will readily state that it is a reasonable, by focusing on crime rates, to conclude the current criminal justice system is working just fine. In other words, I believe those who state, as you do, that the current system is not broken have a reasonable perspective.

What is at issue is whether you think calling the system broken is a reasonable statement. I surmise you do not think those who state, as I do along with now Jim Sensenbrenner and Chris Christie, the system is broken have a reasonable perspective. Indeed, your comments suggest to me that you view all those using this word as being untruthful.

I hope I have answered your question, and helped you understand what I mean (and what I surmise most others mean) when describing our system as broken. Perhaps we should see this adjective as a ssubjective impression rather than as a statement of objective fact. But I do not think it is untruthful to use the term broken in this context.

P.S. to Tarls: I am trying, as most law professors do when pressing students and others, to understand the meaning and implications of what Bill says. Bill says a lot of interesting stuff, and I am always eager to hear his reactions to my reactions to his interesting comments.

Doug --

Thank you for the direct answer.

Sennsenbrenner's error, and yours to the extent you agree with him, is in focusing principally on the 0.7% of the population who are in prison and shrugging off the 99.3% who aren't.

In a feudal system, it might conceivably be acceptable to focus on a fraction of one percent while the gigantic majority just sort of hangs out there. In a democracy, it isn't.

This is to put to one side the fact that the tiny percentage of persons in prison would be elsewhere if they were less interested in making a fast buck and thinking that rules are for everyone else. Even in a feudal system, it is correctly considered bizarre for society to do for individuals what they could and should do for themselves.

You simply shuffle off to one side the literally millions of normal, law-abiding people who have been spared the suffering (and massive expense) of crime victimization. Why don't they count? Why doesn't their averted misery count? Why don't the saved expenses count? Why the obsession with incarceration and the virtual obliviousness to crime?

P.S. Sennsenbrenner's statement that we are "destroying communities" with law enforcement is not merely incorrect; it's preposterous. As is universally known, minorities are disproportionately crime victims, meaning that they disproportionately BENEFIT from the reduced crime incarceration has helped produce.

This was graphically illustrated in none other than Baltimore, where, as I showed, the one thing that has gone right with that city (up until now, anyway) is that it has had substantially reduced crime victimization as more and more of its thugs and strongarms have been taken off the street.

http://www.crimeandconsequences.com/crimblog/2015/04/the-presidents-twilight-zone-r.html

See also Kent's post here: http://www.crimeandconsequences.com/crimblog/2015/04/baltimore-shows-how-progressiv.html

I am not ignoring the people and interests you mention --- in fact I think I am much more concerned about their tax dollars and long-term interests as expressed by their voices and votes than you are. So Sensenbrenneri would guess

"I think I am much more concerned about their tax dollars and long-term interests as expressed by their voices and votes than you are."

Fair enough, let's talk about voices and votes.

In the election eight months ago, the people put 247 Republicans in the House, the highest number since the 1920's.

Can you list even 10 who ran and won on a platform of lower sentences for dealers in meth, heroin, LSD, coke, or any hard drug?

Just ten.

I think you're seeing votes and hearing voices I'm missing, but I will wait to see the list.

In the election eight months ago, Bill, California voters enacted Prop 47. I am pretty sure that proposition lowered sentences for dealers in meth, heroin, LSD, coke, and all drugs.

More fundamentally, in red and blue states --- states ranging from Texas to New York to Oklahoma to Georgia to Louisiana --- politicians have concluded that voters would rather have drug sentencing reform rather than pay higher taxes to build more prisons. And I do not know of a single politician who has lost his job due to his support for sentening reform. And many vocal supporters of such reform --- Perry, Cruz, Paul and now even Christie --- seem to believe they could win the GOP nomination.

These are the voices and votes I notice these days. And really the only voices I hear in opposition seems to be coming from prosecutors.

OK, I'll lower my request from 10 out of the 247 to 5.

"In the election eight months ago, Bill, California voters enacted Prop 47. I am pretty sure that proposition lowered sentences for dealers in meth, heroin, LSD, coke, and all drugs."

That would be easy to pin down by quoting the statutory language specifying meth, heroin, LSD and coke.

This is not to mention that, as Kent and I have repeatedly pointed out, (1) Prop 47 was sold on the basis of a mixture of deception and outright lying, and (2) every report we have heard about the results of Prop 47 -- which are now quite a few from all around the state -- shows that crime is up.

Fair point, Bill, that Prop 47 may not have given the voters of California a full picture of what they were voting on. But they surely knew they were lowering sentences for all drug possession offenses.


More fundamentally, I will readily concede that a platform consisting of "lower sentences for dealers in meth, heroin, LSD, coke, and all other hard drugs" will not likely garner a majority of votes. But folks like Tim Scott and Mia Love were a big part of a wave of newer republicans elected in 2014 who, while preaching conservative values, are getting behind sentencing reform efforts. And I do not think they are betraying in any way the people who voted for them by showing a keen interest in these issues. Do you?

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