The phrase "criminal justice reform" is loaded with emotional impact. To some, the words translate to "soft on crime," which has been a political mantra and damning epithet for more than 30 years. To others, it represents subjugation of the poor and minorities. Laws passed during the 1980s under the label of "reform" created vast sentencing disparities between powder and crack cocaine offenses, with crack crimes receiving sentences up to 100 times longer than those associated with powder cocaine crimes. It was not missed that crack addicts were largely economically bereft, disproportionately black, and living in the inner cities of America.
That sentiment will no doubt come to the fore as the U.S. House of Representatives plans to take up a legislative package this coming month that takes a balanced approach to criminal justice reform. Some fear these changes, believing we are on the cusp of a nationwide crime wave. In fact, on the national level, crime continues to go down. But more importantly, conservatives should welcome these reforms as long-overdue efforts to preserve fairness, protect taxpayers and reinstate the cherished values of federalism.
The statistics most often-cited as support for the belief that a crime wave is looming deal with a recent rise of violent crime in some of the nation's biggest cities. Perhaps most alarmingly, Chicago suffered 2,988 shootings in 2015 and has seen 2,739 through Aug. 25, 2016. But it bears noting that even in Chicago, where fears about the violent crime wave certainly are legitimate, the crimes are concentrated in a few neighborhoods on the city's South and West sides. These are areas that have struggled with crime and poverty for generations. It would be inappropriate for Congress to view its current criminal-justice-reform package – which include bills that range from raising the standard of proof needed in civil asset forfeiture cases to mens rea reform to reducing mandatory minimum sentences for drug offenses – only through the myopic lens of violent crimes in a few major cities and in a few neighborhoods of those cities.
This is particularly true when one considers that these crimes are almost solely within state and local jurisdiction and would not be affected by the federal reforms currently under consideration. Congress' ability to micromanage criminal sentencing is limited. Most convictions are imposed at the local levels, while federal laws are more of a "meat cleaver" tool than a precision instrument.
Moreover, the modest reforms before Congress can hardly be accused of being "soft." Not only will they save taxpayers money, but they also will help ensure at the federal level that those with violent convictions stay where they belong – behind bars. Indeed, H.R. 3713 – the measure targeted for perhaps the most criticism for allegedly being "soft on crime" – specifically excludes anyone with state or federal violent felony convictions from its mandatory minimum relief.
The legislation also increases punishment for crimes involving firearms, as well as those drug-trafficking offenses involving fentanyl or heroin, an attempt to stem the opiate epidemic seen in many parts of the United States. In short, the current criminal justice package before Congress takes a scalpel to make modest reforms that will save money and refocus attention on those who deserve to be punished.
The reforms also represent Congress' attempt to retake ground lost in the policymaking arena and stem the tide of executive overreach. Since he took office, President Barack Obama has granted 562 commutations, including 214 issued on a single day. To put those numbers in perspective, the president has issued more commutations than the past nine presidents combined, with more likely to come. In a statement, White House Counsel Neil Eggleston boasted that "our work is far from finished. I expect the president will continue to grant clemency in a historic and inspiring fashion." It's important to note that many of those who received the president's grace would not be eligible under the reforms currently before the House, because they have been deemed violent felons.
No crime should be excused and we should pursue every loss of life or property. At the same time, the 18th century English jurist Sir William Blackstone's famous admonition was that "it is better that 10 guilty persons escape than that one innocent suffer." That still rings true when addressing the justice system's most important goal — fairness. Let's remember that Lady Justice holds her scales of fairness in front of her and the sword of punishment behind her.
Arthur Rizer is Justice Policy Director at the R St. Institute. He is a former associate professor at West Virginia University College of Law and visiting professor at Georgetown University Law Center. He also spent nine years as a trial attorney with the U.S. Justice Department and served in Iraq (Purple Heart). Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.