What’s the biggest domestic public policy success of the last two generations? In our view, it’s the plummeting crime rate that began with a changed approach to crime in the Reagan years.
The new approach had two major components—proactive policing and mandatory minimum sentencing that set floors below which judges cannot go in sentencing serious offenders.
Mandatory minimums curbed the nearly unfettered discretion federal judges had previously exercised. That discretion produced systemic and shockingly lenient treatment of dangerous criminals; in the decades before Reagan, we invited, and we got, a national crime wave.
Reforms in policing and sentencing succeeded spectacularly. In less than a quarter-century, serious crime has fallen by half.
It’s impossible to say exactly how much of the decrease is attributable to better policing, how much to tougher sentencing, and how much to other factors. But even critics of mandatory minimum sentencing like John Malcolm of the Heritage Foundation attribute 25 to 35 percent of the decline to mandatory sentencing standards. This translates into tens of thousands of murders prevented, along with millions of other crimes.
These days, both prongs of the Reagan-era reform are under attack. The attack on proactive policing has caused police in some jurisdictions, most notoriously Baltimore, to become more passive. This has been a catalyst for a dramatic increase in serious crime, the victims of which are overwhelmingly African American.
Now, a group of senators from both parties proposes to slash many of the mandatory minimum sentences for federal crimes. Their legislation, the Sentencing Reform and Corrections Act of 2015, is sponsored by the usual suspects—Chuck Schumer, Dick Durbin, Lindsey Graham—but also by some unusual ones, notably Charles Grassley, chairman of the Senate Judiciary Committee, and Mike Lee, the freshman Republican from Utah and former assistant U.S. attorney.
The bill was drafted in secret and is being rushed through. The Judiciary Committee is expected to do the markup on October 22, three weeks after the legislation’s unveiling. There will be a one-day hearing, with only one witness likely allowed to testify in opposition.
The proposed statute would shorten mandatory sentences for repeat drug offenders, end the federal “three strikes” mandatory life provision, and give federal judges greater license to sentence as they choose. The law would apply retroactively. Thousands of prisoners could petition to be released even though they haven’t completed their legally imposed sentences.
The most direct and immediate beneficiaries of this legislation will be traffickers in heroin, methamphetamine, and other hard drugs. Over time, many thousands of equally dangerous felons will serve shorter sentences.
This will mean one thing—more crime faster. Statistics compiled by the Obama-Holder Justice Department show that within a year of release, nearly 40 percent of prisoners are re-arrested. Within five years, it’s three-quarters. And these figures don’t include those who recidivate but aren’t arrested, either because the crime isn’t reported (as often happens with drug crimes) or because no arrest can be made. No wonder California, which last year enacted major sentencing reform, is already seeing numerous reports of increased crime.
Why, at a time when drug-related murder is skyrocketing and the nation faces a heroin epidemic, would conservative senators legislate the early release of thousands of major drug offenders? Why do they want to dumb down a system that helped reduce major crime by 50 percent at a fraction of the cost of less effective federal programs?
In a speech to the Heritage Foundation in early October, Senator Lee presented his reasons. He complained that low-level offenders are being locked up for too long. But federal mandatory minimum sentences seldom apply to low-level offenders, who already have a generous statutory “safety valve” to alleviate possible injustice.
Lee also cited the nation’s large prison population. He acknowledged, however, that inmate statistics alone cannot serve as the sole basis for reform, and the federal prison population—about 13 percent of the overall prison population—has been decreasing for two years in any event.
All the while, Lee misses the main point. The real measure of the system’s health is not the incarceration rate, but the crime rate, which has plummeted under mandatory minimum sentencing. Criminal law exists to protect society from crime, not to protect criminals from jail.
Lee went on to argue that mandatory minimum sentencing doesn’t treat offenders “as human beings” because it forces judges to sentence them according to rules rather than individual circumstances. But slashing mandatory minimums doesn’t end the rules, it just waters them down—which, ironically, is just as well, because rules create discipline, rein in chances for discrimination, and provide more nearly equal treatment.
It’s true that the proposed legislation grants judges more discretion. But we know from the era before mandatory minimums that liberal judges will abuse that discretion to go soft on serious offenders. With a raft of new Obama-appointed judges, this error will likely produce the same sort of damage we lived through in the sixties, seventies, and eighties.
Lee’s last argument was that there are too many federal criminal laws on the books, including many that don’t require knowledge of wrongdoing. He’s right about that, but the proposed legislation does nothing to remedy it. In response to a question, Lee had to admit that the number of federal crimes his bill would take off the books is, precisely, zero. Republicans have frittered away their leverage to get something useful done, instead settling for the perverse.
It’s not news when Democrats snooker Republican senators. But conservatives should not be hoodwinked this time into passing a core item of Al Sharpton’s and Barack Obama’s agenda.
Paul Mirengoff is a retired attorney and coauthor of the blog Power Line. William G. Otis is a former federal prosecutor and White House aide, an adjunct professor of law at Georgetown University, and a contributor to the blog Crime and Consequences.
