Rand Paul Says Criminal Justice Reform Can Expand the GOP's Appeal


Jacob Sullum

At a Republican Liberty Caucus event in Dallas last Friday, Rand Paul argued that the GOP can expand its appeal without forsaking conservative principles by supporting criminal justice reform, including a less punitive approach to drugs:

How do we grow a movement big enough to win nationally? It's some of the libertarian ideas that bring the right and left together. Our way is eventually to get a bigger party, because we need to become a bigger party if we want any chance of winning nationally….

There is a third [of voters] that is hardened on either side, and there's the third in the middle. I think, frankly, some of the third in the middle would like to see more criminal justice reform and a less harsh war on drugs. They acknowledge that the war on drugs has had a racial outcome.

The Kentucky senator, who has introduced legislation that would effectively abolish federal mandatory minimum sentences (by letting judges ignore them in the interest of justice), said he is trying to "make the penalties for mostly nonviolent drug [offenses] less severe": 

Basically, don't put people into jail for 10, 15 years. Let them get back to work, let them expunge their records if they've served their time, because if you don't let people get back to work and voting and all of the normal things you can do when you're out of prison, what is the likelihood that they go back to prison for the same thing again? Some will say that's a liberal idea. Well, actually it's a very conservative idea also. Prisons are very, very expensive….You want prisons that separate out people who are a danger to others. People who use drugs are a danger to themselves, and we can argue what the penalty should be, but it shouldn't be 10 or 15 years in jail….A lot of us are Christians, and we believe in redemption and second chances.

Paul is fudging a bit when he makes it sound as if people commonly serve 10 or 15 years merely for using drugs, although his rhetoric on the subject is more sophisticated than it was a couple of years ago, when he referred to people "in jail for 20 years" for "smoking pot." In any case, it is clear from his passionate criticism of mandatory minimums that his concerns about excessive penalties extend to drug suppliers as well as drug users.  

Paul also has talked about shifting drug policy toward the states, which he says should be free to legalize marijuana, although he does not endorse that policy. Consistent with that position, he has backed legislation aimed at preventing federal interference with state laws allowing medical use of marijuana. This federalist approach may help conservatives reconcile themselves to the idea that somebody, somewhere is smoking pot he bought at a state-licensed store. But if fully applied, it is tantamount to repealing national prohibition. That is what the 21st Amendment did, leaving alcohol policy to the states.

The radical implications of Paul's federalism extend far beyond drug policy, as became apparent toward the end of the Q&A session in Dallas, when he was asked, "How can a transformative presidency restore federalism?" His reply:

Well, you could obey Article 1, Section 8, which gives the powers to the Congress. There's about, depending on how you count them, 17 or 19. Everything else should go back to the states. There shouldn't be a Department of Education. It should all be done in Texas, all done in Tennessee, in Kentucky. You don't need most of these federal departments….

Randy Barnett writes a lot about the Ninth and 10th amendments, where we've ignored both of them. The powers that were given were specific and limited….The opposite side of that is that the rights you have are numerous, infinite, and not defined.

You could interpret the reference to Barnett, the Georgetown law professor who wrote Restoring the Lost Constitution: The Presumption of Liberty, as a signal of reassurance to libertarians disappointed by Paul's ideological impurity. But to me it seems like another example of the intellectual candor that occasionally gets Paul into trouble (as it did when he expressed reservations about the Civil Rights Act). It is one of his more appealing qualities. Whether it amounts to anything in practice is another question.