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Bob Ehrlich: 6 Observations on Reforming Criminal Justice

| September 29, 2014

At the annual State Policy Network convention in Denver, Former Maryland Governor Bob Ehrlich spoke about criminal justice reform and his experience as a supporter of the Right on Crime campaign. The Right on Crime Dinner was co-hosted by the Charles Koch Foundation, and also featured presentations by Right on Crime Senior Policy Analyst Vikrant Reddy and William Ruger, Vice President for Research & Policy at the Charles Koch Institute. 

BOB EHRLICH: It’s really fun to be here and thank you very much for the invitation. Every speaker says thank you for the invitation, it’s great to be here, but I really mean it. Because over the past year I have lectured at the New School, at NYU law, at the George Soros Open Society Foundation, on “Politically Incorrect,” and the Clinton Library. To see a room full of right-wingers tonight just does my heart [good]. So thank you very much. And of course, as a Maryland Republican, hostility does not intimidate me, so we had a lot of fun. And of course, that’s a point we’ll get to in a minute. That this is so counter-intuitive to the left, the dissonance it causes with the progressives today given what is happening in the real world particularly through Republican governorships, it’s difficult for a lot of these progressives to take.

I’ve been asked to briefly review sort of the three legs of our criminal justice program in Maryland: collateral relief, reentry assistance, and alternatives to incarceration. And I’m going to do that briefly, as I said, and give you a few observations along the way. What brings us here? What brings us to the topic?

You all know the numbers. Approximately a quarter of a million incarcerated in federal prison, almost 1.5 million folks incarcerated in state prisons. We live in a nation that imprisons a high percentage of its population than any other nation in the world… We fill our local, we fill our state, we fill our federal facilities to capacity and beyond. And all of you know how we got here: Mandatory Minimum sentences and Truth in Sentencing.

I remember sitting in the state legislature and debating what predicate offenses we would add to our juvenile justice statutes in order to wave more violent teenagers into adult court. Because [in] the air [it] was all about [being] “tough on crime” and increasingly violent pushers, increasingly violent drug offenses. And here we are, a few years later, with this mess.

So, at the state level, executive disinterest has been the rule– and that’s unfortunate. A lot of governors aren’t lawyers; they have no particular interest in this issue. Others remain hesitant. We’ve got a process that promises few political rewards. (I’ll get to that in a minute.) At the federal level, we have a dysfunctional pardons operation in the Justice Department that’s well reported [and] well known. We need to talk about that another day. [That] brings us to my experience in Maryland.

The first leg here is collateral relief. I inherited an interesting system in Maryland. My reliably progressive predecessor as governor, Parris Glendening, was famously quoted one day as saying, “life means life, no parole, no revisitation, that’s the end of the game.” And that’s what we see from generally liberal governors around the country to this day. I think it’s the ‘Nixon goes to China’ syndrome. The left is scared; the left is afraid. The left does not want to be called ‘soft on crime.’ So it’s up to Republican governors particularly to lead the way. And they are, as you all know.

In Maryland, we started with a revitalized process. We began with recommendations from the parole board, victim notification, published notices of decisions, regular order – I wanted to make this a non-story. I wanted those miscreants in the media to see I meant what I said when I ran for governor, which is that governors and presidents use this authority. It’s not controversial. It’s not new, it’s not unique; check the Lincoln movie. Know your history. So the monthly meetings began and they extended throughout my tenure as the governor of the state of Maryland. We also though innocence pardons, the few truly innocent folks, exculpatory evidence come to light years later would help us. And they did.

My observation overall is that this issue is less politically radioactive in the suburbs than it ever has been. Why? Because drug offenses particularly touch every category, every line we draw in our society. Race, ethnicity, sex, religion, you name it. You can go to the suburbs today and talk about this without fear of being called soft on crime, particularly if you’re a conservative Republican governor. Which is pretty ironic. As an executive, if something’s your priority, you have to devote the resources. I had five folks, five individuals, five lawyers in my office of counsel. Two and a half did this everyday. We had a large backlog in the state of Maryland. We used interviews and site profiles and lie detector tests and we looked at everyone in cooperation and facts that sometimes were twenty, thirty years old in cold cases. Few observations concerning collateral relief. We need to encourage more governors to do this. And I’ll get to that in a minute. But your friendships will be tested. Your staff will be tested, your press secretary who kept asking me, why are we doing this, where’s the credit, where’s the good press? Did anybody ever hear of Willie Horton? Your political courage quotient will be tested. Prior to the last two years, there was little interest in this on the right, no credit from the left. And it was never about set aside in our government. It wasn’t about race, creed, colour, it wasn’t about keeping score. It was about doing justice. Which is the fundamental definition of what governors do. I never thought this would be part of my legacy as governor, but because we did things that most governors weren’t doing at the time it has certainly become so. As I run around the country and give these talks and speeches to mostly hostile audiences.

A few years back, I thought there needed to be some centralized mechanism, some place, some venue, where we could actually work on this besides conservative think tanks. So I told the Washington Post there needed to be a clinic-based operation at a law school. It appeared one day in the Washington Post. Within a week, I had five law school deans in the Washington area asking me to set up a clinic at their school. Columbus School of Law at Catholic University won the bidding. They offered the best approach. And now the Ehrlich partnership at Columbus School of Law (which is a big deal by the way: I’m a Protestant at a Catholic institution, I didn’t realize it was controversial, but they told me it was after the fact.)–we’re in our second year of operation. The centre’s up and running. It’s a clinical experience for the students generating petitions. State and federal, around the country. It’s also a think tank, a mini-think tank in an academic setting. And it’s also going to be, after November, hopefully a training ground for new counsels and newly elected governors to visit Catholic one day. I’ll be there, talking to them about the importance of this issue. And hopefully setting up similar operations in their new governments.

The second leg is reentry. This is less sexy and my task was how to make it interesting to people who don’t want to think about the fact that most offenders are going to be on the street again at some point. And as I said, most folks don’t want to think about it. So I sold people on a proposition at a speech I developed which was this: I have been to more jails than most folks would ever hope to dream of or not dream of, including folks in this room. I’ve been to jails as a member of the state legislature. I’ve been to jails as a Member of Congress. I’ve been to jails as governor. I have talked to thousands of offenders, mostly male, in some of the worst environments you can imagine. I’ve had thousands of these discussions and it kept coming back–every discussion kept coming back to two denominators. And some folks in this room may not want to hear about the second one. But the first one was fatherlessness. And the second was, I started with marijuana. Almost every time. And that’s just an observation from my experience.

So I took that observation into my stump speeches around the state of Maryland and said, you know what? Here are the facts. Here’s why these drug offenders are incarcerated in some of the worst facilities you can imagine and here’s what we need to do. So we had a program called Restart. Skilled training, affordable housing, parenting skills, drug treatment. Behind bars, cognitive redevelopment behind bars. Money behind bars. And I could go to the suburbs and talk about it, why we were doing it, and there was no downside to it. In fact, the only point of opposite was the Correctional Officers’ Union, who thought they were going to be replaced in favor of psychiatrists and psychologists. That the COs would be replaced.

And speaking of credit – and I’ll get to this also in my final observation in a second – progressives in the Maryland legislature, my friends in the black caucus, my friends in democratic leadership, who loved what we were doing of course wouldn’t say so. It was, “Bobby, good job, attaboy.” Quietly. As they were condemning me daily for other affronts, including school choice.

The third leg was something we called Project Diversion for those in the system, non-violent drug offenses. Again, a less difficult sell today. Wasting money incarcerating addicts is not a hard sell, again, in the suburbs today. It’s so funny, some of you Marylanders may recall this: Russell Simmons, who’s a pretty relevant guy in today’s culture, campaigned against me. They were on the Steele ticket. Mike Steele was my lieutenant governor. And he told Maryland I was to the right of Attila the Hun and we can’t elect a Republican and the whole place was going to go to Hell. And after a couple of years of these reforms, Russell Simmons came to Maryland and said this, especially in terms of drug laws, a lot of people have given lip service about these ideas, but the Ehrlich-Steele administration came in and they lived up to that. So sometimes the popular culture pays attention to what we’re doing. We also, by the way, expanded drug courts, which you’ve seen in many, many states. I believe they work.

So before we open the floor for questions, six quick observations for your consumption as you leave here tonight:

First, this is an easier issue than it ever has been. We need to take advantage of it. If we’re talking about justice. True justice. Fairness. Why governors get paid.

Secondly, it’s still fragile. Not so long ago in the state of Mississippi, Haley Barbour’s pardons were pretty controversial. And Haley was a great governor. We could be one case away from a Willie Horton. It will set us back, believe me. Now that was a different set of circumstances. But you have to tread carefully here.

Third, this may be the only purple issue in the country. As the Democrats go uber-left, far left, ultra left, everyone had a term to describe Harry Reid and Nancy Pelosi. And Republicans maintain a pretty conservative position in the House and Senate. There are very few issues subject to legitimate compromise. This is one. This is one. A true purple issue.

Fourth, in Maryland I had credibility as a member of the legislature with the victims rights groups. In order to do this in a state, particularly a tough state, you have to have credibility with folks who might cause you a problem. Because I had that credibility as part of this foundation we could do this without fearing ugly press conferences from the opposition. Victims rights folks have to be brought into the matrix.

[Fifth, the Three Arguments.] As we go out and talk about this issue to not right wing or left wing audiences, just general folks, and I do it as well, I just turn to what I used as governor and use three arguments. One is constitutional: Lock them up in many cases is wrong constitutionally. If that didn’t work, [two,] it was moral. It’s the right thing to do. Again, why we get paid. And the third was just practical. What do you want walking on your street next week, next month, next year? Many of these folks, most of them are coming out. In what condition do you want them in? It’s not progressive, pejorative, to spend a few bucks behind bars.

My [sixth] observation is just political. As I said earlier, a lot of my friends on the left loved what I was doing but would never ever talk about it in public. Republican governors are leading the way. I hope the next Republican president, 2016, also leads the way. But we shouldn’t do it with the expectation that we’re going to get credit from the left. Or that this is going to be the issue that breaks into the racial divide, the racial partisan divide. It probably won’t. But as we know, it’s the right thing to do and ultimately the right thing to do will pay political benefits. So a few words, hopefully words of wisdom, for your consumption.

I’ll be glad to answer a few questions about our experience with this issue generally and I’ll let your eat your dessert. Thank you very much and godspeed.


RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.