On Monday, Attorney General Eric Holder announced efforts to scale back the use of mandatory-minimum sentencing. When filing charges against nonviolent drug offenders who are not known to be affiliated with gangs or cartels, federal prosecutors will no longer inform courts of the amount of contraband involved, so as to avoid triggering lengthy mandatory sentences. Just as important for conservatives concerned with federalism and the Tenth Amendment, Mr. Holder signaled that the federal government will defer the prosecution of more low-level, routine drug cases to state and local governments.
As we explained on the Corner yesterday, the attorney general is a late arrival to the criminal-justice-reform bandwagon. Nonetheless, on behalf of conservative governors and lawmakers around the country, as well as Justice Antonin Scalia, we heartily welcome Mr. Holder to what may be the only trail all of us can travel together.
The Federalist Papers clearly explain that “the ordinary administration of criminal and civil justice” belongs “to the province of the State governments,” and in fact, conservatives at the state level have been involved in criminal-justice reform for years. Since 2010, conservative legislatures in Ohio, Georgia, Pennsylvania, and South Dakota have passed significant reform packages. In all of these states, conservative governors supported the reforms and signed them into law.
Texas is perhaps the most prominent state to be involved. In 2007, the state’s Legislative Budget Board insisted that legislators would need to spend $2 billion on the 17,000 additional prison beds that would be necessary by 2012. Texas legislators were rolling in a multi-billion-dollar budget surplus at the time — but, led by house corrections-committee chairman Jerry Madden (a Republican from north Dallas), they opted to veer from Texas’s longstanding strategy of simply building more prisons. Instead, the legislators worked to develop a reform package that required a far smaller amount of money than would have been spent on prisons, and spent it on alternatives to incarceration for nonviolent offenders. These alternatives included drug courts, electronic monitoring, and enhanced parole and probation supervision. The reforms were signed into law by Governor Rick Perry. When 2013 finally arrived, Texas’s crime rate was at its lowest point since 1968, and the legislature had authorized three prison closures. Texas had succeeded while spending less on prisons.
Texas succeeded in part because, unlike the federal government, its courts are not cramped by mandatory-sentencing laws. Some conservatives applauded the mandatory minimums that were passed by the federal government (and many state governments) in the 1990s, but so did many liberals and correctional officers’ unions. (More incarceration, after all, means more union jobs.)
The Bureau of Prisons budget increased by about $197 million per year from 1980 to 2010; the current BOP budget is now 25 percent of the entire Department of Justice budget and is crowding out other important DOJ functions. On July 25, the department announced that, while national declines in crime were accompanied by declining prison populations for the third straight year, all of these decreases had come at the state level. The federal prison population actually increased.
So, Eric Holder is indeed a bit late to the bandwagon. Senators Rand Paul and Mike Lee have already filed bills targeted at mandatory-minimum reform. In the House of Representatives, Representative Jason Chaffetz has filed a wide-ranging bill that would seek to reduce recidivism rates. Both George Will and NRO’s own Rich Lowry have expressed support for criminal-justice reforms, and for years numerous prominent conservatives, including Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist, have been signatories to the Right On Crime Statement of Principles, which proposes a broad return to conservative fundamentals of accountability, transparency, and community in the criminal-justice sphere.
None other than Supreme Court justice Antonin Scalia expressed similar opinions in February 2012, in his remarks at the American Bar Association convention. He lamented that “there’s too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts.” Justice Scalia attributed part of this to the sheer volume of federal criminal laws; today these laws are so numerous that they cannot be counted, but the number has been estimated at more than 4,500. Moreover, in testimony before Congress in October 2011, Scalia observed: “It was a great mistake to put routine drug offenses into the federal courts.” Indeed, half of the more than 200,000 current federal-prison inmates are drug offenders, many of whom do not come close to being the type of international kingpins who traditionally were prosecuted at the federal level.
At this point, the onus is on conservatives in Congress to transform these ideas into law. Holder’s announcement of an administrative change is welcome, and it is within his legitimate discretion as a prosecutor — but, as the Obama administration has frequently failed to appreciate, administrative changes are made at the whim of one person and can be reversed as easily as they were instituted. Statutory reforms remain necessary to ensure that the law provides a reasonable range of punishment for low-level federal drug offenses, and that there is enough prosecutorial and judicial flexibility to craft sentences that fit the crimes.
While this administration has not been known for forging close relationships in Congress, true leadership on this issue cannot end with Holder’s pronouncement. Even as we welcome this Department of Justice as a fellow traveler in pursuing corrections reform, the road ahead calls for this administration to leverage its political capital. It must urge congressional Democrats to join conservatives in translating this discretionary change into durable reform.