Bipartisanship is often a dirty word to libertarians. This may seem counterintuitive, seeing as we tend to agree with conservatives on many issues while siding with liberals on others. But when it comes to how Washington operates, bipartisanship typically represents Democrats and Republicans scheming to increase the power of the political class at the expense of average Americans. This comes in the form of across-the-aisle “compromise” on issues such as piling up national debt, funding corporate bailouts, and generally increasing the size of government in a manner that prevents businesses without political connections from fairly competing in the market.
In recent years, however, a positive bipartisan consensus has formed around the notion that our criminal justice system is in desperate need of reform. Nearly half of all federal inmates are incarcerated as a result of drug charges, tearing families apart, all over non-violent crimes. Meanwhile, taxpayers spend $500 per minute on the War on Drugs, yet drug trafficking has increased over the years. Clearly, it’s long past time for a change.
This speaks to why earlier this month, the Sentencing Reform and Corrections Act was introduced in the Senate. As Ari Melber at MSNBC reported: “The bill would reform federal prison sentencing to reduce some of the automatic and harsh punishments Congress passed since it began cracking down on drug use. It would end the federal ‘three strikes’ rule and limit the use of mandatory 10-year sentences for offenders who have not committed violent or major felonies.
Beyond reforming the length of some prison terms, the bill would also bulk up rehab programs for selected inmates, including job training, drug treatment and religious programs designed to reduce recidivism. The proposal also restricts the use of solitary confinement for juveniles, an increasingly controversial practice in American prisons.”
This piece of legislation represents a compromise that follows earlier bills such as the Smarter Sentencing Act and Justice Safety Valve Act. Both were introduced in the Senate and had the backing of libertarian Republican Senator Rand Paul, but they have thus far failed to garner enough support to move forward. What they have done, despite the lack of legislative progress, is act as crucial building blocks to get to the point the Senate reached this month. To many reform advocates however, the Sentencing Reform and Corrections Act is merely a band-aid on a bullet wound. This is largely because Chuck Grassley (R-IA), Senate Judiciary Committee Chairman, remains committed to the basic premises of the War on Drugs.
As Jacob Sullum said at Reason: “The Smarter Sentencing Act was already a compromise compared to the Justice Safety Valve Act, a bill backed by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) that would have eliminated mandatory minimums. Yet Grassley called the less ambitious bill ‘lenient’ and ‘dangerous,’ since it would lighten penalties for offenses involving substantial amounts of drugs and manufacture, smuggling, or distribution. He conflated such offenses with violence, which means he either does not understand what that word means or does not understand how the current law works. It’s a shame that reformers in the Senate must kowtow to such a mindlessly punitive demagogue.”
While supporters of strong criminal justice reform such as Sullum see the Sentencing Reform and Corrections Act as watered down compared to more ambitious bills, many see it as a slow but sure step in the right direction given the atrocious state of affairs. As Julie Stewart, President of Families Against Mandatory Minimums said in response to the new legislation:
“This bill isn’t the full repeal of mandatory minimum sentences we ultimately need, but it is a substantial improvement over the status quo and will fix some of the worst injustices created by federal mandatory sentences.” Added Stewart regarding the fact that the law will apply to individuals already incarcerated: “This bill will save countless families unnecessary hardship in the future, but just as important, it will provide relief to thousands of prisoners currently serving excessive sentences. Retroactivity is the right thing to do morally and economically. These reforms will help reduce the prison population and shift more resources to crime prevention and rehabilitation.”
As for the downsides, Stewart ultimately agreed with Sullum’s take on the negatives – particularly around the fact that the bill includes new mandatory minimum sentencing despite reducing certain penalties: “It’s a shame that some lawmakers have not broken their addiction to mandatory minimums despite mountains of evidence proving they aren’t necessary or proven to deter crime. We will work to strike these useless provisions, which fly in the face of the rest of the bill’s smart reforms.”
Regarding the bill’s new mandatory minimums, Bonnie Kristian explained at Rare: “If passed, it will actually expand mandatory minimum sentencing for some crimes, particularly violent crimes and those related to ‘supporting terrorism.’ This latter bit is concerning because it has the potential to be very vague, possibly even including nonviolent activities that properly ought to be considered free (if despicable) speech.”
This point is certainly concerning from a libertarian perspective. Advocates of civil liberties have fought tirelessly, particularly in a post 9/11-era, to make sure that the government cannot detain citizens it merely accuses of terrorism without the access to due process they’re constitutionally entitled to. Recent examples of this include the proxy-war over an indefinite detention provision that was first tacked on to the annual National Defense Authorization Act for the 2012 fiscal year. Across the political aisle, politicians from Diane Feinstein to Rand Paul tried to stop the detainment of Americans without a trial, but these controversial provisions remain in place.
This lends itself to questions surrounding increased mandatory minimums for “supporting terrorism.” We already have a government that doesn’t even blink at violating a citizen’s’ basic right to a trial. Now we have to take discretion out of the hands of the officials actually on the ground dealing with sentencing to satisfy overzealous politicians? It’s certainly a concern, seeing as the problems with mandatory minimums in drug cases are obvious. It will certainly be interesting to see how this provision plays out as the bill works its way through the Senate.
Despite some flaws, it ultimately appears as though the Sentencing Reform and Corrections Act is a step in the right direction. Like most political progress, it’s rife with compromise; but if it places us on a positive path, the hope is to build up from there. Reducing mandatory minimum sentencing around drug crimes, particularly retroactively, will go a long way toward reducing the non-violent prison population. Crucially, it will also give judges the ability to better form a punishment based on the actual crime in question, rather than being tied down by what often amounts to an arbitrary federal restriction.
If all goes well, this bill will ultimately be signed into law. Perhaps the more radical reforms that have already been introduced, in addition to new ones in the works, can get a fair hearing and pass through Congress as well. The good news is that progress is being made, and the retroactive aspects of these pieces of legislation will do tangible good for the people presently ensnared in our maze of a penal system. Time will tell whether true justice will ultimately be served.