Are We "On the Cusp of Getting Bipartisan Prison-Sentencing Reform"?

"Oh, you mean this is real. This isn't something from Vermont."


According to National Review's Betsy Woodruff, Hill aides are telling her that "we're on the cusp of getting bipartisan prison-sentencing reform." If they're right, that's a tribute, as Woodruff's article shows, to carefully crafted left/right alliances. In this case, the team includes not just the civil libertarians on each side of the aisle, but social conservatives who have learned the unfortunate effects of incarceration from their friends in prison ministries, plus some hard-nosed budget-cutters who are trying to save a buck.

Here's an excerpt from her piece:

I know, I know—Alcatraz isn't in Texas. Humor me.

Texas legislators acted in 2007 after the corrections department told them it would need to spend the money to add upwards of 17,000 beds over five years….So the state passed reforms designed to reduce recidivism by creating alternatives to incarceration. Low-risk, nonviolent drug offenders were getting sent to prison because judges and prosecutors couldn't find anything else to do with them, according to [Marc] Levin [of the Texas Public Policy Foundation]. Prison in Texas costs $50 per person per day, but alternatives are much, much cheaper: Probation is only $3.50 per day, drug courts are about $6 to $8 per day, and an electronic GPS runs at about $10 per day.

So policymakers realized they could make a dramatic increase in spending on incarceration alternatives and still save tons of money. And that's not even touching on the fact that, as Levin points out, incarceration can sometimes be counterproductive. Alternatives to incarceration mean that people convicted of nonviolent crimes can spend time with their families instead of in prison.

The general consensus was that Texas's reforms worked. In 2004, a little over 30 percent of the state's released inmates ended up incarcerated again within three years. By 2007, that number had dropped to 24 percent. Instead of adding thousands and thousands of beds, the state closed three adult and six juvenile prisons.

From a political perspective, the state's success was incredibly significant — not just because it showed that prison reform was workable as a policy, but also because it was Texas.

[Grover] Norquist tells NRO that when he testified at a hearing on criminal-justice reform in Florida, "When I would say, 'You know, in Texas they did this,' all of a sudden the Republicans on the committee would look up and go, 'Oh, you mean this is real. This isn't something from Vermont.'"

We've been covering the conservative side of the prison reform movement here at Reason for a while—generally favorably, though we haven't shied from criticizing it for the ways it stops short of the changes we favor. Thus far, the movement's victories have tended to come on the state level; if Woodruff's sources are right that we're about to see a win in Congress too, that's a big jump forward.

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  1. Ever notice the similarity between the poster for Escape From Alcatraz and A Clockwork Orange? I smell an IP lawsuit!!!

  2. I am starting to come around to the radical view that the law should never proscribe a minimum sentence for any crime, just maximum sentences. By proscribing a minimum sentence you are taking away someone’s right to trial and punishment by their peers.

    Take the worst crime of all, murder. One can imagine extreme cases where the facts are so mitigating that someone guilty of murder deserves a very light sentence. For example, suppose someone finds the victim sexually molesting their child and murders him. What we do now in those cases is invent BS perversions of the definition of murder and try and pretend what the person did wasn’t really murder. It was manslaughter. They didn’t know what they were doing and so forth. No, it was murder. But the facts provide so much mitigation that the minimum sentence most states demand for murder would be totally unjust. We trust juries and judges to determine guilt or innocence, why don’t we trust them to determine punishment?

    1. Prescribe and proscribe are opposites, as you know. But yes, the idea that juries and judges were “too light” on certain people (usually dark skinned people with drugs, but later any person who consumed alcohol then operated a vehicle) drove all of this.

      1. My mistake, but you know what I mean.

        The long term problem with this is that it is creating jury nullification. Whatever harm that resulted from the odd jury or judge letting a guilty man off with a light sentence pales in comparison to the problems that will result if jury nullification ever becomes common. If that happens, the judicial system could cease to function.

      2. Really? I was taught that mandatory minimums were originally championed by liberals/progressives to address the problem of racist judges/juries letting white men off with light sentences for crimes against black people.

    2. two reasons for the terminology: some in the public find comfort in terms like manslaughter, which make it sound like murder lite, and that is preferable to looking at what actually happened. Second, the rhetorical scale greatly enhances the odds of a prosecution.

      Yes, the parent of the child being molested committed murder. Most rational people would also say the action was justified and might find themselves hard-pressed to convict and imprison that person. Make it manslaughter, however, and it’s easier to convince them that killing someone is wrong. A win for the feelz and for the state.

      1. You convict them of what they did and give the appropriate sentence. In that case, the person who did it is guilty of murder and ought to be branded as such. To me the conviction and the public statement that “yes this is wrong” is more important than the sentence. I don’t see a problem with a judge or jury concluding that all murders are not equal and sometimes someone can be guilty of a crime but due to really compelling mitigating circumstances deserving of only a light punishment.

        1. the branding gives some people pause, right or wrong. In the scenario you laid out, much of the public will have difficulty branding the assailant as a murderer even though, technically, it is accurate.

          That person is highly unlikely to be convicted of murder. So, a more palatable term is trotted out. Prosecutors get a conviction and the public does not walk away thinking an injustice occurred. Speculation on my part, but human nature gives a lot clues into why people behave in certain ways.

          1. Okay. Then maybe they convict of something else. But whatever they convict the person of, the government should not be telling the judge or jury they must give this or that sentence. Nothing wrong with maximum sentences to protect people from runaway juries. But minimum sentences deprive the accused of the right to be judged by their peers.

            1. no argument re: minimums.

  3. I thought closing alcatraz was prison reform

    1. People recoil in horror at the conditions in Alcatraz when in fact Alcatraz was Disney Land compared to the Max and Super Max federal prisons of today.

      1. It’s a quandary. 23 hours a day of solitary confinement is tantamount to mental torture. Yet many of the prisoners in a super max are the equivalent of rabid dogs…they simply can’t be allowed free. Do we put them down like rabid dog ? Would that be more humane ?

        1. It is the consequence of not having the death penalty and having life without parole.

          Back when a conviction for murder meant the electric chair in seven to ten months not seven to ten years, people behaved in prison because they knew murdering someone there was death. Now, we lock violent people up and tell them they are never getting out but no matter what they do they will never face the ultimate sanction. The only way to control them is to resort to more and more cruel restrictions.

          I think the old system was more humane.

          1. This puts me in a mind of watching The Rifleman when I was a kid. One recurring theme was the reformed criminal. A character had gone to jail, and because he had “paid his debt to society”, he had to be accepted, as long as he behaved. Now it seems, it’s impossible to pay one’s debt and rejoin society as a full member. What goes on in a super max is the extreme version of someone saying, if there’s no way to redeem myself, then fuck it.

            1. We have totally given up on second chances or people reforming. We live in a zero defect society and it is awful. Even the worst criminals usually wisen up when they hit about 45 or 50. There is the occasional Ted Bundy who is just a rabid dog killer. But most criminals are just young and violent and irresponsible and self destructive. That usually fades when they get older. Our prisons are filled with violent offenders who are older now and no longer are a threat to much of anyone.

              1. You’ve described most young men, to some degree. Any guy worthy of the name has some event in their youth where they think, I was lucky to get away with that, and survive or avoid jail. And then you mature. So we accepted the idea of a youthful indiscretion. Now everything is a felony, and convicted felons are marked for life.

                As a hiring manager, honestly, if someone had a felony conviction, I would have to look past that to see if it was a “real” crime.

                1. If I started a business Mainer, I would seriously consider only hiring people out of jail. A lot of them have skills. And you can tell right off which ones are serious about fixing their lives and which ones are still knuckleheads. You could very easily hire a workforce full of motivated people who were thankful just to come to work every day and grateful to you for giving them a chance. That sounds like a better workforce than a bunch entitled little shits out of college.

                  1. That is not a crazy idea. But would you run afoul of anti-discrimination laws when you specify convicted felons only in the recruiting process ?

                    1. Not being a criminal is not a protected class. So I think you could do it.

  4. Alternatives to incarceration mean that people convicted of nonviolent crimes can spend time with their families instead of in prison.

    Not-arresting them in the first place still not on the table…

  5. There is a downside to more probation: longer sentences. Instead of a few months in jail, people are sentenced to years on probation with the threat of long incarceration if they fail. I offered to do two years in jail and be done with it but the prosecutor insisted on eight years close probation with the threat of ten years in jail if I screwed up. If a prosecutor wants probation instead of jail, you know probation is the bad choice.

    The only real solution is to get rid of victimless crimes like drug use, pornography, prostitution.

    1. Yes. Probation is in itself a nightmare. Lots of people never make it and end up with longer sentences than they would have otherwise had thanks to their “probation violation”. Putting people on probation is, as you rightly point out, not the answer.

      The answer is to get it through our thick skulls that throwing people in jail is not the answer to every social problem or behavior we don’t like. But good luck with getting any of these ass clowns to figure that out.

    2. Feature, not bug, for the statist. As long as you are on probation, you live free at the whim of the State. You have to tow their lion and dance to whatever tune they call. And getting the right PO is a big deal. So many ways the State owns you while you’re on paper.

  6. Headline is yet another great example of Betteridge’s law.

  7. Any time it looks like we are going to get “bipartisan” anything, I become deeply, deeply afraid.

    1. Stupid *and* evil.

  8. Low-risk, nonviolent drug offenders were getting sent to prison because judges and prosecutors couldn’t find anything else to do with them

    “Our hands are tied!”

    1. Yes, it seems like prosecutors could just decline to seek an indictment.

      1. If we had anything but a state run media, the media would actually do some investigating into the cases they bring and the real harm federal prosecutors are doing in this country. If that ever happened, people would be shocked.

        Unless you have some direct contract with federal criminal court or know someone who does, you are likely to have no idea just how horrible and evil the system is. The fact that people don’t know that is entirely the fault of the media and its total love of government and power. The kinds of abuse that prosecutors daily engage in would make wonderfully compelling and interesting journalism. It would make them money. But they are so in love with power they refuse to do it.

        There isn’t enough scorn and hatred in the world for our media establishment. I hate them more than I hate the people who are doing it. The asshole AUSAs are just assholes abusing the system. But at least they don’t claim to be the watchdogs.

        1. How much of this is the media not willing to invite the Siobhan Reynolds treatment from federal prosecutors? It takes courage to be the first person to yell, “I am Spartacus.”

      2. Stossel had an episode on this issue and one of the guests was that blonde former prosecutor on Fox. She was patiently explaining how prosecutors can use the threat of long mandatory minimums to force people to plea to a lesser charge. She totally didn’t understand that We Get That, and That’s the Problem. To her it was just a matter of stating the obvious so that the others on the panel would understand why prosecutors having such power is actually a good thing.

        1. The people at the bottom layers of DOJ are totally brainwashed. They honestly don’t care if you are innocent. They are trained and taught to believe that anyone who comes across their desk is guilty of something and must be convicted at all costs.

          Worse still, being an AUSA is one of the quicker tickets into politics. So AUSA jobs attract the same sort of immoral trash that go into politics. One of the best things we could do to fix this would be to ban any employee of DOJ from seeking public office for at least ten years after leaving government service. That would go a long ways to improving the quality of people who seek such jobs.

          1. I would like to think I arrived at that conclusion independently, but I have to agree 100%…if there was one change I would make in the way our system is structured generally, I would ban any prosecutor at any level from seeking political office for 10 years. You’re either an officer of the court, seeing that justice is done, or an aspiring politician…not both.

            1. Really you only have to look at how horrible elected State AGs are to understand the harm political ambition does to the justice system.

            2. Another change that would make a lot of sense would be to eliminate the separate prosecution and public defenders offices. There should be one office of public lawyers that split their time evenly between prosecution and defense, and they should be evaluated based on their performance for both sides.

              1. That is what the military does and it helps a lot. Having to be a defense attorney changes your whole perspective on things. Anyone who has just been a prosecutor will end up being a government hack if they were not to begin with.

  9. Incarceration is fairly dumb measure society has arrived at for now. Is it supposed to punish, or to restrain? It’s both, and a lousy compromise.

    I would use incarceration for restraint only, and I’d look for less intrusive or more selective means of restraint too. I’d never commit anyone to jail for over 90 days at a time. If you’re sure 90 days won’t be long enough for a hothead to cool off, that hothead needs to be put to death.

    For punishment I’d look for cheaper & quicker means?probably infliction of pain, primarily. Of course different people will react differently to painful stimuli, but they react differently to incarcer’n as well; for some people, incarcer’n is horrible and for others it’s not bad at all, if it’s simple confinement.

    Of course I think criminal law is overdone generally and hard to justify for most things to begin with. But if you’re convinced someone needs to be treated criminally, you’ve got to decide whether to restrain, to punish, or both, and if so to what degree.

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