Federal ‘Tough on Crime’ Policies Have Failed — Here’s a New Path Forward

Coauthored with Arthur Rizer of the R Street Institute. This op-ed was originally published at the Washington Examiner on October 31, 2017.

Faced with exploding prison populations, states such as Georgia, South Carolina, and Texas in recent years have turned to advanced data analytics to find the best ways to cut spending on prisons and to reinvest that money in programs shown to improve safety, lower crime, and hold offenders accountable. Known as “justice reinvestment initiatives,” the success these programs have enjoyed has caught the attention of several members of Congress, who believe it’s time to implement similar reforms at the federal level.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, recently reintroduced the Sentencing Reform and Corrections Act. Cosponsored by an unlikely team that includes Sens. Dick Durbin, D-Ill., and Mike Lee, R-Utah, the measure is the product of more than two years of negotiations among senators who recognize it’s time to take a different approach. The purportedly “tough on crime” policies reflected in current federal law have failed.

Grassley’s bill offers modest changes to federal sentencing policies. It would expand the existing federal safety-valve exception to mandatory minimum sentences for low-level, nonviolent offenders with little to no criminal history. It also lowers some other mandatory minimum sentences for recidivist low-level, nonviolent offenders, focusing these sentences on those who are repeatedly prosecuted for serious drug crimes or violent crimes.

The Bureau of Prisons, which oversees all federal correctional facilities, consumes roughly 28 percent of the Justice Department’s total budget. In a November 2016 report, the DOJ’s inspector-general cited the need for the department to exercise cost containment, noting that “spending on the federal prison system impacts its ability to fund other important Department operations, such as its critical law enforcement and national security missions.”

Moreover, according to the U.S. Sentencing Commission, nearly 53 percent of prisoners released in 2005 were rearrested within three years. Those who want tougher penalties for federal prisoners ignore both the costs of over-incarceration and the successes seen in the states, particularly in cutting down that kind of recidivism.

Justice reinvestment initiatives have been so successful that more than 30 states have enacted some version of them. Among the successful innovations already seen at the state level have been the introduction of so-called “accountability courts,” which work to address the cause of an individual’s criminal activity, rather than merely punishing the behavior. States also have greatly expanded diversion programs for low-level, nonviolent offenders and created prison programs designed to reduce the risk of recidivism.

Texas, which began its groundbreaking justice reinvestment initiative in 2007, has seen its incarceration rate fall by 20 percent, while also seeing crime and recidivism rates decline by 20 percent and 25 percent, respectively. The efforts have helped the state save $4 billion in prison spending and administrative costs over the past decade. Even as the state closed four prisons, Texas law enforcement and state courts refocused resources on violent prisoners, who have gone from 46 percent of the state’s prison population in 2006 to 49 percent today.

With the states laying the groundwork, the Sentencing Reform and Corrections Act would reform federal sentencing laws by ushering in an evidence-based approach designed to reduce recidivism. Each offender would be subject to a risk and needs assessment and required to complete recidivism-reduction programming to lower their risk. Those who successfully lower their risk of recidivism can earn time credits to serve up to a quarter of their sentence in a halfway house or home confinement.

Some point to recent increases in violent crime as a reason not to pass criminal justice reform at the federal level. But serious crime rates, including property and violent crime, are at their lowest levels since 1966. In the most recent FBI report, total crime either declined or remained steady in 42 states. Over the past decade, the property and violent crime rates are actually down by 25 percent and 18 percent, respectively, while the robbery rate is down by almost 30 percent. The homicide rate has declined by 6 percent since 2007 and it’s roughly half what it was in 1991.

While the figures for 2016 aren’t yet available, the 2015 Bureau of Justice Statistics Crime Victimization Survey showed the rate of violent crime had declined by nearly 80 percent since 1993. All of this corresponds with justice reinvestment initiatives in the states that refocus the criminal justice system to reduce recidivism and devote limited resources toward serious drug and violent offenders.

The Sentencing Reform and Corrections Act is a first and important step toward addressing the problems with the federal criminal justice system. The states have shown that this approach works. It’s time for Congress to catch up and pass similar reforms that have been proven to save taxpayers money and enhance public safety.

Jason Pye (@pye) and Arthur Rizer are contributors to the Washington Examiner’s Beltway Confidential blog. Pye is vice president of legislative affairs for FreedomWorks. Rizer is national security and justice policy director for the R Street Institute.