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

February 8, 2014

The title of this post is part of the headline of this notable new Slate piece. Among other astute points, this piece highlights the generational differences between the members of the GOP who continue to embrace tough (and big) federal criminal justice approaches and other GOP members now embracing reform efforts. Here are excerpts:

“As Christians, we believe in forgiveness,” said [Senator Rand] Paul [in his keynote at the annual American Principles Project conference]. “I think the criminal justice system should have some element of forgiveness.” There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along. “These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community — 3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate. You don’t have as good an attorney if you don’t have money. Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him. “I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause. Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights. Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee. If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes. Ten-year sentences would become five-year sentences. Five-year sentences would shrink to two years.

Every Democrat had voted “aye” — as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House. The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders…. The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees. Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

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….

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.”…

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.”

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….

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.

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