Why the GOP Is Ready to Go Easy on Drug Offenders

Who's winning, who's losing, and why.
Feb. 6 2014 6:04 PM

Forgive and Forget

On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform.

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This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968. They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism. “In recent years,” said Richard Nixon in a 1968 campaign ad, “crime in this country has grown nine times as fast as population. At the current rate, the crimes of violence in America will double by 1972.” As he talked, images of dead bodies, guns, and wild-eyed protesters played over a soundtrack of atonal horn blasts and drumbeats.

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime. Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis. As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”

But it’s one issue at a time, and sentencing reform is getting a look before felon vote restoration does. Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party. “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline. It’s tough to justify some of these incarcerations and the cost. I understand the argument that it gives law enforcement another card to play, plea bargains—I understand that. But we’ve gone too far.”

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In the Judiciary Committee, the average age of the Republicans who voted for reform—Sens. Ted Cruz, Jeff Flake, and Mike Lee—was 45. The average age of the Republicans who voted no—Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions—was 69. The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.” But they remembered the bad old days, and the young guys didn’t.

“They don’t remember how bad crime was in the 1970s, when people were terrorized and murders were three times what they are today,” said Sessions. “There’s a libertarian concern that the government is incarcerating too many Americans. They don’t think too much of that.”

They don’t, but they’re not naïve. Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill. He was an immigration lawyer before he entered politics.

“I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained. “Then, when I was in the state legislature, I was seeing these budgets continue to grow. In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with. And I don’t think that’s right. Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.

“I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent. The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age—about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders. Here is a cause whose time should have come many, many years ago.

David Weigel is a Slate political reporter. You can reach him at daveweigel@gmail.com, or tweet at him @daveweigel.