The criminal justice reform bill unveiled Thursday by a bipartisan group of senators is an attempt to answer a classic conundrum of political science: It’s easy for elected officials to vote for increased sentences, but who ever got elected on a platform of being softer on crime?
If the bill passes, the reason will be partly a response to the racial injustice of overimprisonment as a result of mandatory-minimum sentences, a cause taken up by the Black Lives Matter protests. It will also reflect libertarian concerns about the overcriminalization of American life, and a distinctly conservative worry about the rising costs of imprisonment.
In other words, without a perfect storm of liberal and conservative interests overlapping, the bill would have no chance.
Start with the ever-present race question. For more than 20 years, it’s been clear that mandatory minimums, coupled with the disparity between sentencing for crack cocaine and the powdered form, contributed to differential imprisonment rates between black and white Americans.
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In 2010, the Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine from a 100:1 ratio to 18:1. But the mandatory minimums have stubbornly resisted reform.
The public protests over the killings of unarmed black Americans in the past two years have affected that calculus. The Black Lives Matter movement represents the most coherent, durable and well-organized series of protests over racial inequality in at least a generation. The protests shift the incentives for action, even symbolic action, on mandatory minimums. Liberals and libertarians like Kentucky Sen. Rand Paul were already on board. But others who don’t have the same ideological commitment are much more likely to be swayed by pragmatic concerns. It’s in the interests of all Americans to improve the state of race relations in the country, whether out of love, fear or the desire to go back to business as usual.
Enacting change on mandatory minimums would be a signal to blacks that Congress is taking seriously their concerns. Given that there’s very little Congress can do about the local arrest practices that spurred the protests, criminal-justice reform may be its best opportunity to indirectly address racial injustice in policing and incarceration. In this sense, without Black Lives Matter, there might not been a bipartisan bill with a chance of passing.
Even considering its importance, however, the problem of racial injustice on its own is unlikely to get criminal-justice reform passed. A further necessary element is the libertarian worry about overcriminalization.
Some of the most important academic work on the subject was done by the late Bill Stuntz. A Christian conservative, Stuntz’s posthumously published masterpiece, The Collapse of American Criminal Justice, brought together the evidence of a system that had gone seriously wrong despite what he considered good intentions. Libertarian-oriented conservatives took note. To them, the problem of overimprisonment is less about race and more about overweening government power and a corresponding reduction in the liberties of all Americans. Not only is their conduct often criminalized, but they have no choice but to accept a plea bargain given the enormous sentences they would receive if convicted by a jury.
Last comes money. The cost of imprisonment increases for every year tacked onto a sentence. The proposed bill allows for the reduction of sentences for prisoners who’ve undergone rehabilitation and shown good behavior. That may be simple morality,but it’s also good business.
Expect advocates of the bill to focus on the economic savings of reduced incarceration, a way for conservatives or moderates to tell their constituents that the bill helps them.
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