Get big government out of the courtroom: It’s time for criminal justice reform

This op-ed was originally published at Rare on March 31, 2015.

Democrats and Republicans in Washington may continue to swing away at each other over ObamaCare, the budget, and other policy priorities, but an opportunity has emerged to actually get something important done that is long overdue.

Criminal justice reform.

Capitol Hill lawmakers don’t have to look hard to find examples of success and states, particularly those with a Republican bent, have taken the lead.

In 2007, Texas, known for its “tough on crime” image, began implementing a comprehensive set of justice reforms for nonviolent offenders, saving taxpayers $2 billion in planned prison construction costs while reducing crime rates and lessening the number of repeat offenders.

Former Texas Gov. Rick Perry, who oversaw these reforms, recently explained that his “administration started treatment programs and drug courts for people who wouldn’t be served well by sitting behind bars.”

“We made sure our parole and probation programs were strong, Most of all, we evaluated prisons based on whether they got results. Did an ex-offender get locked up again? Did he get a job? Is he paying restitution to his victims?” he said. “In Texas, we believe in results.”

The results were hard to ignore. After the successful Texas experiment, other states – such as Georgia – passed and implemented their own justice reform programs, finding success with reducing prison populations and saving taxpayers money. Just last month, Utah passed a comprehensive set of reforms that, lawmakers hope, will reduce the high percentage of repeat offenders.

In 1932, Supreme Court Justice Louis Brandeis noted that “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

States – these “laboratories of democracy” – have proven that justice reform works, and it has caught the attention of some lawmakers in Congress.

With federal prison spending booming, an unlikely bipartisan alliance has emerged to bring many of these successful state-level reforms to the federal justice system. Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), and Rand Paul (R-Ky.) have joined with Dick Durbin (D-Ill.), Cory Booker (D-N.J.), and Sheldon Whitehouse (D-R.I.) to reform federal mandatory minimums – a one-size-fits-all, congressionally mandated approach to sentencing.

During a recent colloquy with Lee, Durbin, and others on the Senate floor, Booker gave a nod to these red state justice reforms. “We can save money and still protect public safety with lower rates of incarceration and a greater reliance on community revision and treatment. The wonderful thing about this is that what I am saying is not speculation,” said Booker. “We are seeing this path of reducing crime, reducing prison populations, creating savings, being shown to us in state after state model that the federal government should follow – models seen in Texas and in Georgia.”

The Smarter Sentencing Act would expand the federal “safety valve” – an exception to federal mandatory minimum sentences for low-level nonviolent offenders with little or no criminal history – and cuts in half mandatory minimum sentences for nonviolent offenders. This more rational approach to sentencing will reduce costs on already overburdened taxpayers. The nonpartisan Congressional Budget Office estimated a net $3 billion cost-savings over a decade. The Justice Department believes the bill will save an eye-popping $24 billion over 20 years.

The benefits of the Smarter Sentencing Act may not end with the fiscal savings. It could also reverse the damage done by federal mandatory minimum sentences in certain communities, which, as Lee recently explained, “have paid a high cost for the stiff sentences that mandatory minimums require.”

“The National Research Council found that high incarceration rates are concentrated in poor, minority neighborhoods,” said Lee, “and that the incarceration of significant numbers of residents in these neighborhoods actually compounded existing social and economic problems such as unemployment, poverty, family disruption, poor health, and drug addiction.”

There are some who, even in the face of all the evidence, continue to defend the once pervasive and costly “tough on crime” mentality. Whether they are simply misinformed or beholden to an old way of thinking is open for debate, but there is little getting around the fact that mandatory minimum sentences represent big government in the courtroom.

The Smarter Sentencing Act is an innovative, more effective, and less costly approach to justice. It is only one long overdue step toward meaningful reform, but it is something important that fiscal conservatives, social conservatives and libertarians can—and should—get behind.