A Conservative Case Against Criminal ‘Justice’ Reform

Author: Michael Knowles

At a press conference yesterday, President Trump endorsed the FIRST STEP Act, a belabored acronym and criminal justice reform bill that stands for “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person.” The bill, which has gained bipartisan support, offers criminals the prospect of early release for participating in rehabilitation programs. It also misses the point of criminal justice.

Conservatives including Utah Sen. Mike Lee and Heritage Foundation president Kay Coles James praise the FIRST STEP Act as a “conservative approach to criminal justice.” In an op-ed on Wednesday, Lee describes the plight of “a young father of two with no criminal record” convicted of selling three dime bags of marijuana while carrying a gun to a paid informant, for which he was sentenced to 55 years in prison. While one’s heart hardly bleeds for a gun-slinging drug dealer, such a sentence indeed seems excessive and calls for reform, particularly as states across the country offer marijuana delivery services on-demand in violation of federal law. But the FIRST STEP Act goes too far.

Our current system permits judges to lower sentences for nonviolent drug offenders with little or no criminal history; the FIRST STEP Act empowers judges to lower sentences for nonviolent drug offenders with far longer criminal histories. The bill prevents prosecutors from adding gun charges against drug defendants if the gun is not used in the incident prompting arrest. It also eliminates mandatory minimums for serious repeat drug offenders. Perhaps if these reformers cared as much about rehabilitating the victims of the drug trade as they do its perpetrators, drug overdoses would not kill an all-time high of 72,000 Americans per year.

Criminal justice reformers prattle on about “over-incarceration” in America when in fact our nation suffers from an under-incarceration problem. As Arkansas Sen. Tom Cotton observed during a speech in May at the Hudson Institute, “Law enforcement is able to arrest or identify a likely perpetrator for only 19% of property crimes and 47% of violent crimes.” For the vast majority of crimes, the criminal gets off scot-free.

Nevertheless, insist the reformers, incarcerating criminals breaks up families, particularly black families, as black men account for just 6% of the U.S. population but 38% of inmates. One 2011 study found that each year behind bars increases the likelihood of divorce by 32%. Conservatives have long sought to rebuild the American family, the building block of society. True, but few criminals are married upon incarceration in the first place and few divorce in prison. The marriage rate for U.S. inmates stands at just 16%.

Jared Kushner offered the only honest, albeit wrongheaded, argument for the FIRST STEP Act. “The single biggest thing we want to do is really define what the purpose of a prison is,” explained Kushner. “Is the purpose to punish, is the purpose to warehouse, or is the purpose to rehabilitate?” The purpose of prison, pace Jared, is to punish. A proper criminal justice system exacts justice—that is, punishes criminals for their crimes. Rehabilitation and deterrence are worthy goals, but they are secondary to retribution.

If the purpose of prison were merely rehabilitation, why stop at incarcerating criminals? All of us have at least a few bad habits: a quick temper, a few too many drinks after work. Who couldn’t benefit from a little rehabilitation? And why incarcerate only those who have already committed crimes? We know the risk factors for delinquency: absentee fathers, violence in the home, poor school attendance, substance abuse. Who more than at-risk youth could benefit from some rehabilitation at a federal penitentiary?

Certain criminal sentences merit review and reform in light of changing political and social circumstances. Certain criminals may benefit if judges are given greater discretion in sentencing, although on the other hand a more arbitrary system means different sentences for different offenders who commit the same crime, the very opposite of justice. On balance, the FIRST STEP Act is mercy to the guilty, cruelty to the innocent. One dreads what the reformers have in mind for their second step.

DMU Timestamp: February 07, 2020 23:04