Why conservatives should be wary of criminal sentencing reform

The war on standards in America proceeds on multiple fronts. Employers are under pressure to lower employment standards; public schools to lower student discipline standards; colleges to lower admissions standards; banks to lower lending standards, and so forth.

America’s most basic standards are those embodied in its criminal laws. These standards are enforced through the penalites (usually in the form of prison sentences) associated with non-compliance.

Conservatives generally have tried to resist the assault on standards. But when it comes to criminal law and criminal sentencing, a sizeable portion of the movement (and not just libertarians) seems to side with those who would decriminalize certain conduct, reduce criminal sentences for “non-violent offenses,” and faciliate the early release of prisoners.

Today at the Federalist Society’s 2014 Lawyers Convention, a panel considered the issue of criminal sentencing reform. The proceedings were billed as “a conversation among conservatives.” Federalist Society panels are rarely limited to conversation among conservatives participants — the organization is all about promoting robust debate across ideological lines. But, as I noted, debate among conservatives on the topic of criminal sentencing is inherently robust.

Today’s panel, moderated by Judge William Pryor, featured my friend Bill Otis, former Attorney General Michael Mukasey, and two forceful and respected conservative advocates of sentencing reform — John Malcolm of the Heritage Foundation and Marc Levin, Director of the Center for Effective Justice, Texas Public Policy Foundation.

Thoughout the discussion, it struck me as odd that many conservatives want to change dramatically the current sentencing regime. As Bill Otis noted, if one’s focus is on reducing crime, the current system is a smashing success. Since the Reagan admistration revolutionized federal criminal sentencing through mechanisms like mandatory minimums and sentencing guidelines, the crime rate has dropped by 50 percent.

Not all of the reduction resulted from changes in sentencing. But the panel seemed to agree, based on the social science research, that 25 to 35 percent of the reduction did. At a minimum, as Mukasey urged, we should be very careful about changing a system that has produced such favorable results.

Conservatives should be particularly wary of such change. And this is not the only sense in which the sentencing reform movement seems at odds with conservatism.

Conservatives typically want to confer less power, not more, on judges. The criminal sentencing reform movement would give judges more power to sentence criminals as they please — a return to the bad old days when the length of sentences for the same crime was all over the place, depending on the ideology and or the whim of sentencing judges.

Conservatives typically don’t believe much in the ability of government programs to reform individual character. Nor do they put much faith in experts who claim they can accurately predict how particular indviduals will behave in the future.

But in touting early prisoner release programs, the criminal sentencing reform movement places great faith in the ability of government programs to rehabilitate prisoners. Further, it trusts experts to construct models that accurately assess the risk that a given prisoner will, upon release, abstain from future criminal conduct.

Conservatives favor transparency — what you see should be what you get. The criminal sentencing reform movement, with its emphasis on early release, threatens transparency. The sentence imposed at trial may not turn out to be the real sentence. Again, we could be looking at a return to the bad old days when prisoners sometimes served only ten percent of their original sentence.

Conservatives like to limit government spending, and this desire forms a big part of the stated rationale for sentencing reform. Building prisons is expensive; so is housing huge numbers of prisoners. Thus, current sentencing practices have put state budgets under great strain.

However, as Bill argued today, advocates of reform tend to focus almost exclusively on costs to the government, while ignoring the cost to private individuals of the crimes that will be committed by the beneficiaries of lighter sentences and early release.

With recidivism rates hovering at around 75 percent, it seems clear that reducing the prison population via sentencing reform will lead to sigificantly more crime. It runs counter to conservatism to obsess over costs to the government while ignoring or downplaying the cost to individuals, and to the social fabric, imposed by a significant increase in crime.

Advocates of sentencing reform emphasize that they seek only to provide relief to certain categories of “non-violent” offenders. But as Mukasey explained, in the context of drug crimes (which is a focal point of the reform movement) it makes little sense to speak of non-violent offenses. The entire drug culture rests on a foundation of violence, and low-level drug offenders participate in the destruction of neighborhoods and the ruining of lives.

Conservatives should be particularly attuned to the impact of crime — whether or not violent per se –on the social fabric. Insensitivity to this phenomenon and/or attempts to obscure it through the use of labels is what I expect from liberals. It does not suit conservatives.

The criminal sentencing system undoubtedly can be improved. But today’s session left me persuaded that, taken as a whole, the types of reforms that are on the table would be a major step in the wrong direction.