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David Perdue, R-Ga., center, voted against the Sentencing Reform and Corrections Act of 2015 last month.
Analysis

The Dissenters

Not everybody is aboard the criminal justice reform bandwagon. Here’s why.

If you had to pick a single word to sum up all that has happened in Washington over the last year on the subject of criminal justice, it might be ‘bipartisanship.’ Or maybe ‘kumbaya.’ Democrats and Republicans are smiling and shaking hands over reform legislation, with political cover from the Koch brothers and the Right on Crime movement.

Scratch a little, though, and the story is not so simple. Warnings that any rollback in sentencing will lead to an uptick in crime continue to be staples of election campaigns, from state judicial races (sometimes funded by those same Koch brothers) all the way up to the Republican presidential race, where Donald Trump, Ted Cruz and Chris Christie have been urging tougher enforcement. The current bipartisan momentum for reform has not been seriously tested in national elections, and the tone on the campaign trail suggests there are still votes to be won by standing fast against change.

This is the atmosphere that awaits the Sentencing Reform and Corrections Act of 2015, authored by Senate Judiciary Chairman Chuck Grassley of Iowa, and headed for the full Senate. The bill eases mandatory minimum sentences, mainly for some nonviolent drug crimes. It is a compromise, meant to satisfy both law enforcement and reformers who hope it is a first step toward more radical measures to reduce prison populations and curb abuses by prosecutors and police.

Grassley’s bill has momentum, which means that those who oppose it are finally starting to organize themselves and settle on their strategies and arguments. The next year, as presidential contenders and congressional candidates are drawn into the discussion, will test just how open voters are to new, less severe approaches to crime and punishment.

So who are the dissenters? And what do they want?

Like the bipartisan coalition they are up against, the dissenters are a varied lot. Some are willing to work on reform legislation but have “concerns” about specific proposals to reduce the federal prison population. Others say the country has been doing a relatively good job at keeping law-abiding citizens safe from drugs and violence and that there is no reason to retreat.

Overall, they are skeptical that the federal prison population can be reduced without an increase in crime. They agree with many reform advocates that the prison population — less than 20 percent convicted of drug charges — cannot be seriously shrunk without shortening the sentences of people whose crimes were violent. (The difference is that many reformers are willing to do that.)

“I think the ‘mass incarceration’ phrase is a complete misnomer,” said Heather Mac Donald, a Manhattan Institute political commentator who is an outspoken defender of stiff prison sentences. Even reformers, she noted, admit that the rise in incarceration over the last few decades has helped bring down the crime rate (though they dispute how much, and at what cost). Asked about the effect of high rates of incarceration on communities and families, MacDonald contends the larger problem is not prison, but the “crime-breeding chaos of broken families” and the “irresponsibility of fathers — of any race — who do not raise their children.”

While many major-city police chiefs and prosecutors have endorsed reforms, the law enforcement groups urging caution include associations of FBI officers, sheriffs and federal prosecutors. Their allies in Congress include five (out of of 20) members of the Senate Judiciary Committee who voted against the Grassley bill last month. “If this bill becomes law, we’re adding potentially thousands of repeat, violent felons into the mix,” Sen. David Perdue, Republican of Georgia, said last month at a hearing on the bill. At least two of the committee opponents have proudly displayed their dissent on the campaign trail: Ted Cruz of Texas in his pursuit of the Republican presidential nomination, and David Vitter in his race for governor of Louisiana. Vitter’s campaign features an ad accusing President Obama of releasing “dangerous thugs” back into “our neighborhoods.”

For these law enforcement officials, one major quarrel with the reform movement is over retroactivity. Both the recent reduction of drug sentences by the independent U.S. Sentencing Commission and the legislation advancing in the Senate allow prisoners serving under the old guidelines to apply to have their sentences reduced.

Judges are required to vet these applications and consider whether these men and women are dangerous, but that does not satisfy critics, who say that often someone is charged with a violent crime and then pleads down to a lesser crime. Senator Cruz, who supported reducing minimum sentences in February but voted against Grassley’s bill, said “none of us know what the underlying conduct was that the prosecutors may have plea-bargained down under the existing sentencing laws.” The National District Attorneys’ Association has also said that retroactively reducing sentences may lead to “reopening old wounds for victims.”

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The U.S. Sentencing Commission does not keep data on indictments and pleas, but David Patton, executive director of Federal Defenders of New York, does not agree that this sort of plea-bargaining is common. In federal courts, he noted, the sentencing guidelines direct judges to sentence based on the “real offense” — not just the crime settled on in a plea bargain.

Part of the debate is over the war on drugs: prosecutors have a lower threshold for when a drug offender becomes a “trafficker,” and each side has an arsenal of emotionally compelling anecdotes. For every story of someone whose life was ruined by a predatory drug dealer, there is a story of a dealer whose own life struggles can engender sympathy, or who has gotten an education and gone straight. Many opposed to relaxing sentences for drug offenders point out that drugs can wreak as much havoc on communities as violent crime, even if drug dealers are technically considered “non-violent.”

Prosecutors also say that reducing mandatory minimum sentences will weaken their bargaining power as they try to elicit cooperation from low-level drug dealers. Steve Cook, president of the National Association of Assistant U.S. Attorneys, said that long mandatory minimums give prosecutors prosecutors leverage as they encourage dealers to rat out their bosses, allowing investigators to work up the hierarchy of secretive drug operations. “They put their lives in danger by cooperating with us,” he said. “The weaker those minimums become — you reduce the number of people who will cooperate.” (The organization Families Against Mandatory Minimums has called out prosecutors for not offering substantial proof of this contention, noting that the plea rate for drug trafficking is fairly similar to the rate for other crimes)

Cook, like many of his colleagues at other D.C.-based law enforcement organizations, said he is convinced that substantially reducing sentences and releasing current federal inmates earlier will have an effect on the crime rate. They point to a recent rise in the murder rate in some U.S. cities as a reason for caution. The rates at which people released from prison go on to commit further crimes are contested, but one of the most cited studies on the subject, by the federal Bureau of Justice Statistics, said that 75% of those released are rearrested within five years. Shorter sentences, for Cook, means one thing: “more crime faster.”

There is no proof that incarceration and crime rates cannot be reduced simultaneously, and several states — including New York, New Jersey and California — have managed to do just that. One study by the U.S. Sentencing Commission of crack cocaine offenders found that prisoners released early have not tended to have higher rearrest rates than those who serve their full term.

Although some in law enforcement see any uptick in crime as intolerable, others concerned about the bill are more measured. Laura Cooper, legislative director of the Major County Sheriffs Association, says her group simply wants the bill to include “specific language that local law enforcement would be included in analysis of reentry costs.”

Caution is a common word among the dissenters, who want Congress to wait and see what becomes of the thousands of federal prisoners who have already been approved to have their sentences reduced under new guidelines by the U.S. Sentencing Commission. “These experiments in sentencing and judicial reform will have a result that is yet to be seen,” wrote Nathan R. Catura, president of the Federal Law Enforcement Officers’ Association, in a letter to Grassley.

There is an emerging debate in conservative circles about whether reform really can wait; for Rep. Bob Goodlatte, chair of the House Judiciary Committee, the federal prisoner release that began a few days ago is actually proof that Congress cannot wait to enact reform. He wrote recently that if Congress “does not act,” then leadership on federal sentencing will continue to be exercised by the U.S. Sentencing Commission, which he described as “an entity that has demonstrated it cannot be trusted to act responsibly.”

Some of those opposed to the reform bills have noted that no matter what happens, time and public opinion have tended to be on their side. They say — and some reformers worry they are right — that a sustained spike in the murder rate, or a few dramatic and fear-inspiring crimes, could significantly set back the cause of reform.

Asked about the current bipartisan momentum among lawmakers, Bob Bushman, president of the National Narcotics Officers’ Associations’ Coalition, responded: “What are they going to say when the crime rate goes back up?”