Are Conservatives Rethinking their Hostility to Criminal Justice Reform?

Tough-on-crime usually means tough-on-taxpayers.

For advocates of less-intrusive government, finding the good news in the recent election is like looking on the bright side after your house has been wiped out by a hurricane. You never did like that floor plan, anyway, and this seems like a great opportunity to rethink your lifestyle.

The political storm was particularly fearsome in California. Democrats already are floating trial balloons now that they have gained a legislative supermajority that allows them to pass direct tax increases without GOP support.

But there was some good news, however slim, on the ballot in the long-neglected area of criminal-justice reform. California voters passed, by a 69 percent to 31 percent margin, a measure (Proposition 36) that reforms the state's notoriously tough three-strikes-and-you're-out sentencing law.

In 1994, California voters passed Proposition 184, which targeted repeat offenders. Under that law, if a person convicted of two serious or violent felonies commits a third "strike," it would automatically lead to a life term with no possibility of parole for 25 years. The verdict is out on how much "three strikes" contributed to falling crime rates, but there is little question that California's strict version led to rising incarceration costs and high-profile instances of injustice.

Unlike any of the other 23 states that passed "three strikes" laws, California imposed the life sentence on offenders whose third conviction was for "any" felony, rather than for a serious or violent one. So we've witnessed cases where offenders have received that life term for stealing a piece of pizza, kiting a bad check, and other relatively minor crimes.

The costs of implementing the law are enormous, especially in a state where the union-controlled, overcrowded, and arguably inhumane prison system costs the taxpaying public $47,000 a year to incarcerate a criminal. Studies put the estimated savings of Prop. 36's passage at $70 million to $200 million annually, which is significant even in spendthrift California.

Under Prop. 36,  a criminal receives a life term only if the third strike is violent or serious or if the offender is previously convicted of child molestation, murder, or rape. In other cases, if the third strike is not violent or serious, the offender receives a doubled sentence.

The good news is the reform effort sparked little controversy. A number of prominent conservatives spoke out in favor of Prop. 36, including Grover Norquist, the nationally prominent defender of the "no new taxes" pledge. He was quoted in the ballot argument: "The Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put a stop to needlessly wasting hundreds of millions in taxpayers' hard-earned money, while protecting people from violent crime."

Norquist also is a member of a group called Right on Crime, which officially endorsed Prop. 36. Its membership—i.e., former Ronald Reagan attorney general Ed Meese, potential Republican presidential contenders Jeb Bush and Newt Gingrich—isn't filled with people who send contributions to the American Civil Liberties Union.

Right on Crime argues: "Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending. That means demanding more cost-effective approaches that enhance public safety. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered." It's significant that conservatives would jump-start this discussion, which is needed now that Republicans are regrouping and trying to put together a bundle of government-reform issues that might appeal to the nation's voters.

Despite the general impression that California is a left-wing hothouse, it has long been a law-and-order state where both parties have played cynically on the public's oftentimes legitimate fears about crime. There's been little willingness here to do more than build more prisons and throw more money at a system dominated by the powerful prison-guards union, which has lobbied against reforms to protect its "business."

When I got to California in 1998, it was toward the end of the gubernatorial race that pitted Republican Attorney General Dan Lungren against Democratic Lieutenant Gov. Gray Davis. Both men were engaging in a "tough on crime" arms race which reached the most absurd levels when, as The New York Times reported, Davis "said in a televised debate, on issues of law and order, he considered Singapore—a country that executes drug offenders—'a good starting point.'"

Davis was later recalled and replaced by Arnold Schwarzenegger who, despite his long list failures, did try, unsuccessfully, to take on the guards and buck the orthodoxy of conservatives who found law-and-order to be their only winning issue outside of holding the line on taxes. Both parties were appealing to voters who, according to a recent San Jose Mercury News analysis, voted only five times since 1912 "to curb the power of the state's criminal justice system."

The GOP has a great opportunity to focus on justice and cost savings given that the California Democratic Party has let its union domination trump any concern about civil liberties and it has never cared about protecting the public from excessive taxation. Since Davis, the Democrats have refused to be outflanked on the right on public-safety issues. They have a simple approach to criminal justice matters: Give the police and prison guards' unions anything they want.

Perhaps the opportunity simply is born of receding public fear as crime levels drop to historic lows. Whatever the case, with the passage of Prop. 36 and the emergence of Right on Crime, there's a clear blueprint for Republicans who want to put into practice their oft-stated promises about reforming and limiting government.