Why Conservatives No Longer Want to Be “Tough on Crime”

Who's winning, who's losing, and why.
July 17 2014 2:24 PM

Crime Fighters

Why the GOP is waking up to the need for criminal justice reform.

Sen. Rand Paul.
Sen. Rand Paul (R-KY) addresses the Faith and Freedom Coalition's 'Road to Majority' Policy Conference at the Omni Shoreham hotel June 20, 2014 in Washington, DC.

Photo by Chip Somodevilla/Getty Images

Is Washington finally working again? While Congress continues to disappoint the unemployed and the undocumented, some prominent conservatives are helping to push bipartisan legislation to aid another marginalized constituency: criminals. Simply put, Republicans have helped make this the greatest Congress ever for pot smokers and thieves.

Just last week, Sens. Rand Paul and Cory Booker unveiled the REDEEM Act, a bill that aims to help nonviolent offenders with measures that would restrict the use of solitary confinement for juveniles, grant certain drug offenders access to food stamps and welfare, and allow for the sealing of nonviolent criminal records.

“What I’ve found as I’ve been around Kentucky and met people is that I meet people who still have trouble getting a job because of their felony record sometimes,” Paul said at a Politico­ event last Wednesday. “And many of these are nonviolent felonies. And I think, really, you serve your time, you should get a second chance. And so to me it’s a lot about trying to get people back into the society, back into employment.”

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Paul has been perhaps the most outspoken conservative in Congress to argue the need for criminal justice reform in recent months, but he’s certainly not alone. Since the passage of the Fair Sentencing Act of 2010, a bill that reduced the infamous sentencing disparity between crack and powdered cocaine, a number of similarly focused, bipartisan bills have been put forward. Sen. Mike Lee has been working with Sen. Dick Durbin on a bill that will likely build upon the Justice Department’s efforts to reduce mandatory minimums. In the spring, Sen. John Cornyn introduced a bill with Sen. Patrick Leahy aimed at bringing more oversight and accuracy into the use of forensics in criminal cases.

Paul, who has worked with Leahy on another mandatory minimum bill and legislation to grant voting rights to nonviolent ex-cons, says that he’s spoken with President Obama about combining REDEEM and some of the other bills into a major reform package. If that happens, it will be a significant policy accomplishment, as well as the culmination of a major policy reversal for leading conservatives who, almost simultaneously, have come to realize something liberals have long known: After decades of practice, we’ve gotten far too good at imprisoning people for minor offenses.

Advancing that truth in conservative circles has been a project years in the making. For nearly a decade now, conservative activists and state policymakers have successfully pushed for corrective reform in the unlikeliest of places, including in a state famously at ease with putting criminals to death. In 2007, conservatives in the Texas legislature opted to close a major projected shortfall in prison space with probation reform and rehabilitation programs instead of with new prison beds and expensive corrections facilities. The results have been promising. “Since then, Texas’ incarceration rate has fallen nearly 20 percent, a decline attributed in large part to these programs,” wrote Mother Jones’ Shane Bauer earlier this year. “Meanwhile, Texas’ crime rate is at its lowest since 1968.”

In 2010 the conservative group Right on Crime was formed to try to replicate Texas’ success around the country. One of its leading advocates has been anti-tax advocate and liberal bogeyman Grover Norquist, who promoted the cause alongside Texas Gov. Rick Perry at the Conservative Political Action Conference in March.

“Republicans have tended to focus on those things that the government shouldn’t be doing in the first place,” he said. “They also need to be—and are—spending more time now saying, ‘OK, about those things that the government needs to do: Are we doing them as well as we should be?”

That state-level conversation has now moved to Congress, where forward-thinking Republicans are working to buck obstructionism and enact policies that could yield electoral dividends in the years ahead. Like immigration reform, justice reform can be seen, in part, as an effort at capturing a greater share of a crucial and largely Democratic voting bloc—black Americans, who are far more likely to be incarcerated. Unsurprisingly, justice reform was a cornerstone of Paul’s speech at Howard University last year, an event that Norquist argues moved the needle on the issue for conservatives.

Though Norquist is positive about the additional attention justice reform is now getting from conservatives at the national level, he holds reservations about federal inducements to state action of the kind proposed in the REDEEM Act.

“If this is dictated in Washington, then nobody at the state level has any buy-in and any interest in making it work,” he contends. “I think the way to do this is to find a handful of states and pass things there.”

Conservative writer Ramesh Ponnuru, who has been at the center of endless discussion about the rise of reform conservatism, agrees that states should be given the freedom to rethink their corrections systems at their own pace, but he also thinks that national conservatives won’t squander the chance to use the issue to improve perceptions of the Republican Party.

“I don’t think it’s any surprise that people want to soften their image as Republicans. And so this is one way of doing that,” he said. “And you’re not going to be able to do that if you’re a conservative lawmaker on Capitol Hill by saying, ‘Well this might be a good idea, but I’m going to leave it to the states and otherwise keep my hands free of it.’ ”

In short, the looming central debate among Republicans on this issue will be about the role of the federal government in promoting justice reform rather than about whether justice reform should happen at all. Despite Rick Perry’s best efforts to preserve it, “tough on crime” seems to be on its way out as a conservative mantra. “Smart on crime” is officially in.

Osita Nwanevu is a Slate intern.

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