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Why Criminal Justice Reform Could Work Now

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The criminal justice reform bill unveiled Thursday by a bipartisan group of senators is an attempt to answer a classic conundrum of political science: It’s easy for elected officials to vote for increased sentences, but who ever got elected on a platform of being softer on crime?

If the bill passes, the reason will be partly a response to the racial injustice of overimprisonment as a result of mandatory-minimum sentences, a cause taken up by the Black Lives Matter protests. It will also reflect libertarian concerns about the overcriminalization of American life, and a distinctly conservative worry about the rising costs of imprisonment.

QuickTake Mandatory Minimums

In other words, without a perfect storm of liberal and conservative interests overlapping, the bill would have no chance. And it will still be vulnerable to criticism by Republican presidential candidates with the rhetorical capacity to move conservative public opinion and block passage.

Start with the ever-present race question. For more than 20 years, it’s been clear that mandatory minimums, coupled with the disparity between sentencing for crack cocaine and the powdered form, contributed to differential imprisonment rates between black and white Americans. I can remember poring over academic articles and statistics demonstrating the racially disparate effects of sentencing as long ago as 1995, when I was a summer intern in the Department of Justice.

In 2010, the Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine from a 100:1 ratio to 18:1. But the mandatory minimums have stubbornly resisted reform. Not enough members of Congress saw political advantage in legislation reducing punishment for illegal drug crimes, even if nonviolent.

The public protests over the killings of unarmed black Americans in the past two years have affected that calculus. It’s not that mandatory minimums, or even imprisonment, are directly related to the differential use of force in the apprehension of blacks, or even to the differential arrest patterns that logically precede the sentences.

Rather, the Black Lives Matter movement represents the most coherent, durable and well-organized series of protests over racial inequality in at least a generation. The protests shift the incentives for action, even symbolic action, on mandatory minimums. Liberals and libertarians like Kentucky Senator Rand Paul were already on board. But others who don’t have the same ideological commitment are much more likely to be swayed by pragmatic concerns. It’s in the interests of all Americans to improve the state of race relations in the country, whether out of love, fear or the desire to go back to business as usual.

Enacting change on mandatory minimums would be a signal to blacks that Congress is taking seriously their concerns. Given that there’s very little Congress can do about the local arrest practices that spurred the protests, criminal justice reform may be its best opportunity to indirectly address racial injustice in policing and incarceration. In this sense, without Black Lives Matter, there might not been a bipartisan criminal justice reform bill with a chance of passing.

Even considering its importance, however, the problem of racial injustice on its own is unlikely to get criminal justice reform passed. A further necessary element is the libertarian worry about overcriminalization.

Some of the most important academic work on the subject was done by the late Bill Stuntz, a colleague of mine who died tragically young in 2011. Stuntz, a Christian conservative, drew attention to the last expansion of the criminal code to include a broader range of conduct and the imposition of more aggressive sentences.

His posthumously published masterpiece, "The Collapse of American Criminal Justice," brought together the evidence of a system that had gone seriously wrong despite what he considered good intentions. Libertarian-oriented conservatives took note. To them, the problem of overimprisonment is less about race and more about overweening government power and a corresponding reduction in the liberties of all Americans. Not only is their conduct often criminalized, but they have no choice but to accept a plea bargain given the enormous sentences they would receive if convicted by a jury.

Last comes money. The cost of imprisonment increases for every year tacked onto a sentence. The proposed bill allows for the reduction of sentences for prisoners who’ve undergone rehabilitation and shown good behavior. That may be simple morality, as Pope Francis hinted in his address to Congress. But it’s also good business. There’s no reason for the taxpayer to support incarceration of older inmates, which doesn’t make the public safer even on the theory that the point of incarceration is to incapacitate potential criminals.

Expect advocates of the bill to focus on the economic savings of reduced incarceration, a way for conservatives or moderates to tell their constituents that the bill helps them.

Given that it’s almost a presidential year, it would be too optimistic to assume the bill will pass. If Donald Trump or Ben Carson opposes it, and the other Republican hopefuls fall into line in their desire to outconservative the mavericks, it could put the bill in jeopardy. It’s no coincidence that the bipartisan legislation comes out of the Senate, not the more ideological House.

There’s room for hope, however, that the political scientists’ prediction will be wrong this time, and that criminal justice reform is possible in an electoral democracy.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net