This article by Americans for Tax Reform president and Right on Crime signatory Grover Norquist originally appeared in OZY May 18th, 2018.
There are a whopping 2.2 million American men and women living in cages. The breakdown is 225,000 in U.S. federal prisons, 1,316,000 in state prisons and 615,000 in county and city jails — at an average annual cost to taxpayers of $33,274 each. Ninety-five percent will return to the general population when their sentences end, and nearly 70 percent will be back behind bars within three years.
These numbers were not always so high. Total incarceration was 160,000 in 1950, 213,000 in 1960, 196,000 in 1970, 330,000 in 1980; it lurched upward to 774,000 in 1990, 1,236,000 in 2000 and 1,612,000 in 2010.
The political right and left have starkly different narratives as to how we got here. And yet, while Republicans and Democrats in Washington, D.C., remain gridlocked on mega issues like taxes, spending, labor law, regulations and judicial appointments; at the state level, elected officials from both parties have passed and signed into law significant criminal justice reforms that have begun to reduce the levels of incarceration in 33 states.
So why now? Crime has for decades been one of the more divisive and politically charged issues. Richard Nixon ran on “law and order” in 1968. Ed Koch won the 1973 mayor’s race in New York City campaigning in support of the death penalty. William Horton’s furlough from a life sentence without parole for murdering Joseph Fournier and his subsequent rape of a woman in Maryland was a key factor in George H.W. Bush’s defeat of Michael Dukakis in 1992.
A few factors have enabled left/right coalitions at the state level to make progress on criminal justice reform. First, the crime rate has fallen and receded somewhat from the headlines. The number of murders has been in decline — from 7.9 per 100,000 in 1970 to 10.2 in 1980, and then 9.4 in 1990, 5.5 in 2000 and 4.9 in 2015. Second, fatigue has set in over the drug war. Today, 29 states have legalized medical marijuana, and nine states have legalized recreational use.
Third, Texas was the first state to make big moves to reform its justice system, back in 2005 when Gov. Rick Perry signed HB 1678, which incentivized drug courts to send drug users to rehab rather than prison. (Texas does not have mandatory minimum sentences.) Reform was driven in part because, without it, the Lone Star State would’ve needed to build 17,000 new prison beds at a cost of $2 billion. After the reform, Texas closed four prisons, reduced its incarceration numbers from 156,000 in 2011 to 146,000 in 2017, and the crime rate, including violent crime, fell. Which means that Texas, the state that has led the nation in executing murderers, has demonstrated you can be both tough and smart on crime while putting fewer people in prison for shorter sentences.
This Texas example had been in effect for five years when the GOP swept the 2010 elections resulting in 26 states with Republican governors and both houses of the Legislature Republican. Texas taught those states that criminal justice reform reduced costs over time, did not disrupt the declining crime rate and that no one in Texas lost an election for being “weak on crime.” The same initial success in Vermont might not have been as readily copied.
Fourth, the failures of the prison, court and justice system were ripe for reform. Civil asset forfeiture allows police to seize cars, cash and even homes if they “think” it was related to a crime. Often no conviction is needed; sometimes no formal charge is made. But how many victims take the risk of going to court and possibly spending more for lawyers than the car or cash were worth? In 2015, the Treasury and Justice Department took and kept more cash through civil asset forfeiture ($5 billion) than all the burglaries ($3.5 billion) in America.
An explosion of new crimes, owing to “overcriminalization,” has swelled the number of federal laws to 6,000 and regulations to 200,000 that could send you to prison. Many of those laws/regulations lack a mens rea (guilty mind) requirement, meaning you can go to prison for violating a law you never knew existed and for doing so without criminal intent.
Successes at reversing this trend at the state level might just lead to a win in Congress. On April 18, Van Jones (host of CNN’s The Van Jones Show) and Jared Kushner, first son-in-law, went to Congress to meet with dozens of legislators in support of the Prison Reform and Redemption Act co-sponsored by Rep. Doug Collins, R-Ga., and Rep. Hakeem Jeffries, D-N.Y. It would substantially refocus federal prison toward rehabilitation and increase the ability of inmates to win time off for successfully readying themselves for life back in the free world. The bill would also ensure that federal prisoners are housed within 500 miles of their home — making family visits and prisoner transport easier.
But what was a consensus issue heading for certain passage just weeks ago is now in doubt. A number of key Democrats are demanding that the modest reform of the federal prison system also include substantial sentencing reform that is less likely to win a House floor vote. Some have suggested that Democrats would do well to wait and see what happens in the November midterm elections before supporting first-step legislation (an approach that delayed and then killed criminal justice reform in the last two years of the Obama administration). But the debate is not entirely divided along party lines. The Republican chairman of the Senate Judiciary Committee, Iowa’s Sen. Chuck Grassley, is also holding firm for the more ambitious sentencing reforms, and Senate Majority Whip John Cornyn, R-Texas, supports a clean prison reform bill.
Despite recent complications, criminal justice reform remains the most likely zone for bipartisan cooperation and progress in both the states and Congress. The newly amended and renamed First Step Act, now including some additional sentencing reform, was just approved by the House Judiciary Committee in a strong 25-5 vote. So, for now, the partisans are failing in their efforts to make the perfect the enemy of the good. We may soon have one step forward that could lead to further progress on additional sentencing reform, civil asset forfeiture, mens reas and overcriminalization.