Wednesday, November 14, 2012

Voters Moving, Congress Standing Still?

Reason's Radley Balko has a very interesting column over at The Huffington Post today, looking at this election year's big wins on marijuana legalization (Colorado, Washington) and three strikes sentencing reform (California) and asking whether voters -- and Congress -- might finally be abandoning their 30-year obsession with "tough on crime" policies.  After all, only a whopping 7 percent of Americans think we are actually winning the War on Drugs. 
The recent results seem to indicate that at least in some parts of the country, the electorate is paying more attention to criminal justice issues, is more willing to hold law enforcement officials accountable and is less credulous when it comes to tough-on-crime posturing.

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.

"While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses. We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind.
What's stopping Congress from following the examples of innovative, reform-minded states around the country?  It might be fear of being labeled "soft on crime" by police and prosecutors.  It might be that the federal government just doesn't have the budget pressures the states do (though a fiscal cliff and a sequester might help with that).  It could be a lack of bipartisanship:
Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support. Whether or not it’s entirely accurate, Democrats are perceived as soft on crime, and Republicans as tough on crime. So, when Republicans call for sentencing or drug reforms, it becomes safe for everyone to support the reforms. It’s the Nixon goes to China syndrome."

But even here, there has been some movement. In addition to the 2010 law addressing the crack/powder cocaine sentencing disparity, some conservatives are beginning to talk about criminal justice reform, particularly when it comes to sentencing and prisons. The advocacy group Right on Crime has had some success over the last few years bringing many of these issues to the attention of conservative politicians and pundits. The conservative flagship think tank the Heritage Foundation recently launched its "overcriminalized" project, which critiques the ever-growing criminal code and the expanding power of prosecutors. A number of conservative voices have recently come out against the death penalty, including Brent Bozell, Richard Viguerie, and David Brooks.
Or maybe the reason we haven't seen wide-scale federal sentencing reform is that we simply haven't locked enough people up yet:
"I think with the soaring prison population, and with groups like Chuck Colson's Prison Fellowship, many conservatives have started to come into contact with people who are or have been in prison," [FAMM board member and Criminal Justice Policy Foundation president Eric] Sterling says. "Having personal contacts like that can change your views. When you're close to it, you start to realize how excessive it has become. And I think it can speak to religious values. Too little punishment is wrong. But they're seeing that too much punishment is just as wrong."
So, voters and Congress, it's a race to sentencing reform.  Who will get there first?  We don't know.  But we do know that at the end of that race, everyone wins.