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The Truth About Federal Sentencing Reform

| October 6, 2015

In a piece posted at Breitbart on Sunday, columnist Ben Shapiro takes issue with the “Sentencing Reform and Corrections Act” unveiled last week in the Senate, suggesting that the bill, should it become law, would imperil recent successes across the country in reducing crime rates:

“America’s crime rate has fallen dramatically over the past several decades because we have taken crime more seriously. That means keeping serious criminals in jail, not letting them out. But, following the recent pattern of disassociating good consequences from the system that created them, we’ll now experiment with putting criminals back on the streets earlier in the name of reducing crime.”

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in jail is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive. Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and obviates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism. Recognition of this has been just one instance of states taking “crime more seriously,” and indeed, being smarter on crime.

Consider Texas. Since 2005, Texas has created drug courts, instituted swift and certain sanctions for those in violation of their terms of release, and incentivized offenders to comply with terms of probation. As a result of these reforms and others, Texas has realized a reduction in its incarceration rate of 12% since 2008, and its lowest crime rate since 1968—at the same time, it should be noted, as reserving mandatory sentences for only the most violent or repeat offenders. Other states have successfully passed their own similar reforms, and the Senate’s bill draws on these lessons for the federal system.

As it relates to a specific provision Shapiro raises regarding application of an enhanced mandatory sentence, there are important points that he fails to mention. First, while the bill reduces an enhanced mandatory sentence for crimes involving use of a firearm from 25 to 15 years, it also expands the scope of offenders subject to it by including similar firearm offenses committed at the state level. As such, more offenders would be serving a mandatory sentence under this provision.

Second, while this reduction is applied retroactively, and could result in altered sentences, any such reduction would not be automatic, coming only after a court has considered various sentencing factors, including risk of recidivism, danger to the public, and prison misconduct. In fact, every provision of this bill that reduces a mandatory sentence is coupled with judicial oversight. Therefore, any suggestion that Congress would be “letting criminals out of prison” haphazardly is without merit.

The federal prison population has exploded by nearly 800 percent since 1980, fueled in large part by mandatory sentences that lock in definite stays behind bars, and don’t allow for judicial discretion that treat cases on an individualized basis. Even without mandatory sentences, judges are still capable of levying tough penalties for serious offenses—and just as in states like Texas that have “tough on crime” reputations, this can be done without jeopardizing public safety.



MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

His work for the Foundation has focused primarily on criminal justice reform topics, particularly civil forfeiture, prison reform and justice reinvestment, mens rea reform, occupational licensing, and various law enforcement and privacy issues. He’s also written about federal corporate subsidies, school choice, and gun rights.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. At EWU, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

His writing has appeared in National Review, The Hill, Townhall, Washington Examiner, Dallas Morning News, El Paso Times, Trib Talk, RedState, Ricochet, and Breitbart Texas.