Coming Together on Crime

Reforming the criminal-justice system has become a point of political convergence. Who would have thought it?

Inmates at Deuel Vocational Institution wait for appointments at the prison's mental health clinic on Thursday, Oct. 11, 2012, in Tracy, California, U.S. The primary purpose of the Deuel Vocational Institution is to serve as a reception center for newly-committed prisoners to the California Department of Corrections and Rehabilitation from northern California county jails as well as house a small number of minimum and low security inmates. 
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Ronald Brownstein
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Ronald Brownstein
May 1, 2014, 5 p.m.

It’s no secret Left and Right can’t agree on much these days. Red and blue states are hurt­ling in op­pos­ite dir­ec­tions on is­sues from taxes to gay mar­riage. In Wash­ing­ton, con­gres­sion­al Re­pub­lic­ans and Pres­id­ent Obama are so po­lar­ized that it’s con­sidered a tri­umph when they can keep the gov­ern­ment open.

Yet one is­sue is con­spicu­ously mov­ing in the op­pos­ite dir­ec­tion: crim­in­al-justice re­form. From 2009 through 2013, more than 30 states passed laws re­du­cing the pen­al­ties for drug crimes — a list that in­cludes not only Demo­crat­ic-lean­ing places such as Mas­sachu­setts and Hawaii but also re­li­ably Re­pub­lic­an states such as South Car­o­lina and Ok­lahoma. Texas has in­sti­tuted so many re­forms to re­duce its in­mate pop­u­la­tion that in 2011, for the first time ever, it closed a pris­on.

Mean­while, in Wash­ing­ton, the Sen­ate in May will take up ma­jor sen­ten­cing-re­form le­gis­la­tion, and the bill’s spon­sors in­clude the un­likely quar­tet of Demo­crat Dick Durbin and Re­pub­lic­ans Mike Lee, Ted Cruz, and Rand Paul. As re­veal­ingly, Re­pub­lic­ans who have re­peatedly ac­cused Pres­id­ent Obama of ab­us­ing his ex­ec­ut­ive au­thor­ity have uttered hardly a peep over the Justice De­part­ment’s un­pre­ced­en­ted re­cent ini­ti­at­ive to en­cour­age non­vi­ol­ent pris­on­ers sen­tenced un­der ri­gid earli­er man­dat­ory-min­im­um sen­tences to seek ex­ec­ut­ive clem­ency.

For those who have watched na­tion­al polit­ics long enough, the idea that crim­in­al justice could be a point of polit­ic­al con­ver­gence is as­ton­ish­ing. From the late 1960s through the 1990s, few is­sues in Amer­ic­an polit­ics were as in­cen­di­ary — or did more to shat­ter the New Deal Demo­crat­ic co­ali­tion and drive blue-col­lar whites to­ward the Re­pub­lic­an Party. That pro­cess prob­ably peaked in the 1988 pres­id­en­tial race, when the soft-on-crime la­bel helped to doom Demo­crat­ic nom­in­ee Mi­chael Duka­kis, who could con­vin­cingly de­fend neither his op­pos­i­tion to the death pen­alty nor his sup­port for the Mas­sachu­setts pris­on fur­lough pro­gram that set free Wil­lie Hor­ton, a con­victed mur­der­er who then com­mit­ted rape after fail­ing to re­turn from a pass.

In this cli­mate, laws that im­posed man­dat­ory min­im­um sen­tences, even for non­vi­ol­ent drug crimes, or oth­er­wise lim­ited judges’ dis­cre­tion (such as the “three-strikes” law that Cali­for­nia’s Le­gis­lature and voters ap­proved in 1994) swept the states. The dia­logue began to shift with the pas­sage of a 1994 fed­er­al crime bill un­der Bill Clin­ton that fur­ther toughened en­force­ment but also sought bal­ance by ex­pand­ing pre­ven­tion ef­forts (such as pro­grams for at-risk teens). Yet even that de­bate still split mostly along tra­di­tion­al left-right lines. The sort of ideo­lo­gic­al blur­ring that has seen out­go­ing Texas Gov. Rick Perry, or­din­ar­ily a north star of con­ser­vat­ive po­s­i­tion­ing, be­come a pas­sion­ate evan­gel­ist for pris­on re­form re­mained un­ima­gin­able in those years.

What’s changed the polit­ic­al equa­tion on crime since then? The most im­port­ant factor is the de­cline in the crime rate. After sur­ging through the 1980s as the crack epi­dem­ic cres­ted, the vi­ol­ent crime rate has fallen al­most every year since 1993 and now stands at only about half of what it was then, ac­cord­ing to FBI fig­ures. (A sep­ar­ate Bur­eau of Justice Stat­ist­ics crime sur­vey shows the vi­ol­ent-crime rate tick­ing back up over the past two years but still down about two-thirds from its 1993 level.) “We have an in­cred­ible op­por­tun­ity for change be­cause crime is down,” says Mi­chael S. Ro­mano, a lec­turer at Stan­ford Uni­versity Law School.

Sim­ul­tan­eously, shifts in­side the GOP drained some of the par­tis­an venom from these is­sues. Dur­ing a pan­el dis­cus­sion Ro­mano mod­er­ated at the Milken In­sti­tute Glob­al Con­fer­ence in Los Angeles this week, Van Jones, a com­munity and Demo­crat­ic act­iv­ist work­ing on these is­sues, poin­ted to three dis­tinct strains of con­ser­vat­ive lead­ers who are em­bra­cing re­form: fisc­al con­ser­vat­ives like Perry frus­trated with the swell­ing price of in­car­cer­a­tion (which will cost the states $40 bil­lion this year); liber­tari­ans like Lee and Paul “con­cerned about ex­cess­ive gov­ern­ment power”; and re­li­gious con­ser­vat­ives, drawn to the pos­sib­il­ity of re­demp­tion.

With more con­ser­vat­ive part­ners avail­able, fruit­ful cross-ideo­lo­gic­al part­ner­ships to re­duce in­car­cer­a­tion rates, like the Durbin-Lee le­gis­la­tion, are sprout­ing. An­oth­er ex­ample was Pro­pos­i­tion 36 — a 2012 Cali­for­nia bal­lot ini­ti­at­ive to re­lax the three-strikes law — which was de­signed by Steve Cooley, then the Re­pub­lic­an dis­trict at­tor­ney for Los Angeles County, and Ro­mano, who was ad­vising the NAACP Leg­al De­fense Fund. Voters ap­proved that meas­ure over­whelm­ingly, al­low­ing roughly 3,500 non­vi­ol­ent pris­on­ers sen­tenced to life un­der the law to pe­ti­tion a court for re­lief. About 1,600 have since been re­leased, and their re­cidiv­ism rate has been only 1.3 per­cent, com­pared with about 30 per­cent for all oth­er in­mates re­leased over that peri­od, ac­cord­ing to a new study from the Three Strikes Pro­ject, which Ro­mano dir­ects.

This Left-Right con­ver­gence doesn’t in­clude every­one: House Re­pub­lic­ans have shrugged at the Sen­ate’s sen­ten­cing re­form. Nor does it point to­ward simply empty­ing the pris­ons. As Ro­mano ac­cur­ately noted dur­ing the pan­el dis­cus­sion, the same low-in­come and minor­ity com­munit­ies suf­fer­ing most from el­ev­ated in­car­cer­a­tion rates also be­ne­fit most from fall­ing crime rates. But the polit­ic­al space cre­ated by the bi­par­tis­an in­terest in re­form is al­low­ing elec­ted of­fi­cials in both parties to make nu­anced judg­ments about how best to re­duce crime without bloat­ing pris­ons. Ima­gine if the polit­ic­al cli­mate al­lowed them to be­have that ra­tion­ally on the coun­try’s oth­er big chal­lenges.

COR­REC­TION: An earli­er ver­sion of this story mis­stated Mi­chael S. Ro­mano’s title. He is a lec­turer at Stan­ford Law School.

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