How Republicans Stopped Being 'Tough on Crime'

GOP lawmakers in Congress are moving toward prison reform. Is this the final frontier for bipartisanship?

In Lawrence, Mass., on Oct. 26, 1974, William "Willie" Horton robbed a gas-station attendant and, along with two accomplices, stabbed him to death. In 1986, while serving a life prison sentence in Massachusetts, Horton was given a weekend pass under the state's furlough program. He went missing for nearly a year and was eventually recaptured in Maryland, but only after he had raped a woman and assaulted her fiancé.

Willie Horton's case became an albatross for Michael Dukakis, who was governor of Massachusetts at the time of Horton's disappearance and had supported the furlough program his predecessor put in place. In 1988, George H.W. Bush's presidential campaign used the Horton incident to paint Dukakis, the Democratic nominee, as being soft on crime. The Associated Press later wrote that the election "sometimes resembled a national referendum on Willie Horton."

Forty years later, Marc Levin still cites the Horton case as one of the main reasons for America's difficulty coming around to prison reform. Levin is the cofounder of Right on Crime, a conservative, Texas-based group that advocates for sentencing reform and eliminating mandatory minimums for low-level drug offenses.

Levin says that after the 1988 election, Democrats overcompensated with too-strict crime laws. "After Willie Horton and everything, they were really scared about being seen as soft on crime, so they overreacted and latched onto things that weren't good policy, but were just sound bites," Levin told National Journal.

In September, Politico credited Levin with persuading the GOP to "abandon its lock 'em up mantra." And indeed, many Republicans in Congress are moving away from the tough-on-crime philosophy that dominated the Nixon, Reagan, and Bush eras. At a time when people complain about historic levels of gridlock, there is more bipartisan support for reforming the criminal-justice system than there has been in the past four decades.

This newfound Republican support isn't just the product of tokenism. Among the members of Congress who have cosponsored legislation on this issue are Sens. Rand Paul, John Cornyn, Chuck Grassley, Mike Lee, Rob Portman, and Orrin Hatch, along with Reps. Raul Labrador, Paul Ryan, and Jason Chaffetz.

"This certainly is something that has gained momentum among many Republicans—not all," Lee told National Journal. "There's still a number of Republicans who don't agree with me on this, that this ought to be a priority. But I've been pleased by the number of Republicans who have joined me in this effort."

Of course, that doesn't mean the Republican colleagues always agree with each other. Grassley recently blasted the Smarter Sentencing Act, which was introduced by Lee and Sen. Dick Durbin. The bill would allow federal judges to use their discretion when sentencing some nonviolent drug offenders, instead of having to obey mandatory minimums. Grassley said the bill would "put taxpayers on the hook for close to $1 billion in entitlement spending." What Grassley didn't mention was that the bill would also lead to $4 billion in budget savings over the next 10 years, according to the Congressional Budget Office.

Levin, the Right on Crime founder, says the financial burdens imposed by the justice system—which often disproportionately targets minorities and hamstrings those not wealthy enough to afford their own attorney—should especially outrage conservatives.

"Look, I'm a free-market guy, so I say the fact that rich people can get a better car, nicer jewelry, that's all well and good. But here we're talking about justice," Levin said. "Conservatives ought to be particularly receptive to these things, and I think they are, because at some point it just becomes like a tax."

But Lee emphasized that sentencing reform isn't just a fiscal issue for Republicans.

"There's no question that reforming our sentencing system could save us money. I want to point out, though, that that is not our primary objective in this," Lee told National Journal. "An even more important objective involves not the financial costs, but the human costs."

That human cost is very real. The violent-crime rate is the lowest it's been in 20 years, yet there hasn't been a corresponding decrease in incarceration. Nearly a third of the world's female prisoners are incarcerated in the U.S. Between 1991 and 2007, the number of children with a parent in prison increased by 80 percent—so widespread that Sesame Street recently aired a segment dealing with the issue.

The prison population is the oldest it's ever been. In West Virginia, 20 percent of the prison population is over the age of 50. This raises the question: What is the advantage of the U.S. spending billions of dollars to house prisoners who may not present any real public danger?

Yet there is reason for optimism. Last year, the federal prison population decreased for the first time in several decades. And at the state level, governors have been quietly putting reforms in place for years. In November, Californians will vote on a ballot initiative that would reduce drug felonies to misdemeanors and use the budget surplus to fund social programs. Even in Texas—the bastion of the tough-on-crime mentality—Gov. Rick Perry has funneled money into special courts and rehabilitation programs to reduce recidivism.

That state-level support appears to be bubbling up to the federal level.

In July, Sens. Rand Paul and Cory Booker introduced the Redeem Act, which would expunge some nonviolent juvenile offenders' criminal records, and would limit solitary confinement for minors, except in rare cases.

"Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration," Paul said in a statement. "Fortunately, legislators from both sides of the aisle realize that youthful mistakes should not turn into a lifetime of crime."

But bipartisanship isn't all sunshine and rainbows. "There is no shortage of issues that Senators Booker and Paul disagree on—from reproductive rights to universal background checks on firearms purchases—but they have found common ground in working to fix our nation's broken criminal justice system," a Booker spokesperson told National Journal.

Criminal-justice reform has united other odd couples like Paul and Booker. In March, the Senate Judiciary Committee approved a bill put forward by Republican Sen. John Cornyn of Texas and Democratic Sen. Sheldon Whitehouse of Rhode Island that would try to triage the likelihood that a prisoner would commit another crime, if released. The law would also give time credits to "low-risk" offenders and allow some to complete their prison sentences under "community supervision."

Cornyn said it's time to move away from the one-size-fits-all approach to treating American prisoners.

"When I went to law school, we'd learn in criminal law class that rehabilitation was always one of the goals of our criminal justice system. But honestly, in my lifetime, we've done a lousy job at rehabilitating people," Cornyn told National Journal. "Instead, they have taken an approach that's more like warehousing people."

Cornyn said he's confident that if the GOP retakes the Senate in November, prison reform will be one area where they will be able to work with the White House. Even Whitehouse—Cornyn's Democratic counterpart on this legislation—sees this as an upside to a possible Republican-controlled Congress.

"Frankly, I think the biggest danger to these bills is not really on their substance. It's just the threat of partisan and obstructive mischief by the more extreme Republican senators," Whitehouse told National Journal. "The motivation for that mischief evaporates once they're in control."

There you have it—prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: "The only disagreement sometimes is who's gonna get the credit."