In the context of this disagreement — reflected in the broader conservative movement — the House has passed a worthwhile but watered-down bill called the First Step Act. This legislation would make changes on the exit side of incarceration — increasing funding for education and job-training programs and allowing inmates to earn credits for early release. As a result of opposition from Sessions and others, the bill does not focus on the entrance side of incarceration — sentencing reform that would encourage alternatives to imprisonment for less dangerous offenders.
Conservatives are split on issues surrounding prison reform. But the debate is happening for a supremely conservative reason: because states have demonstrated it can work. In the current issue of National Affairs, Lars Trautman and Arthur Rizer III provide a helpful survey of a red-state policy revolution. States such as Texas, Georgia and Louisiana have taken measures to divert addicts and people with mental-health problems from incarceration, to limit mandatory minimums and to make wider and better use of parole.
The theory is simple. America’s vast experiment in routine incarceration — which has quadrupled the U.S. incarceration rate since 1972 — had some effect in reducing contact between dangerous offenders and potential victims. But recidivism rates are dismal. And millions of relatively nondangerous people have been swept up into a justice system that puts them in intimate contact with dangerous offenders, exposes them to rape and violence, deprives their families of emotional and financial support, and sends them back into communities without skills and stamped with a felony stigma.
Given that the main deterrent to crime is not the severity of punishment but its certainty, prison and sentencing reforms are designed to provide a broader range of penalties and treatment options to courts, along with greater discretion in employing them. This means that violent criminals get treated differently from nonviolent criminals, who get treated differently from addicts, who get treated differently from the mentally disabled, who get treated differently from parole violators — instead of sweeping them all into (expensive) prison beds.
States have done more than apply a theory. They have demonstrated something practical, hopeful and remarkable. “This renaissance has been led in large part by deep-red Texas,” Trautman and Rizer write, “which, by instituting a series of ‘smart-on-crime’ initiatives in the last decade, accomplished a feat previously believed to be impossible: the simultaneous reduction of its crime, recidivism and incarceration rates.” While the crime rate index fell by 20 percent nationally from 2007 to 2014, it fell by 26 percent in Texas. The state, meanwhile, closed eight prisons.
What does this mean for the Kushner-Sessions conflict? It means that the criminal-justice views of the attorney general are far to the right of the Texas state legislature, which puts him in small and disturbing company. It means that Sessions’s opposition to sentencing reform is rooted in vindictiveness and ideology rather than a conservative respect for facts and outcomes. And it means that Sessions has learned nothing from federalism, which he seems to respect only when it fits his preconceptions.
One of the reasons this good idea should succeed in Washington is to demonstrate that any good idea can succeed in Washington. Two other scholars, Steven Teles and David Dagan, have called prison and sentencing reform an example of “trans-partisanship,” which they define as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals look at mass incarceration and see structural racism. Libertarians see the denial of civil liberties. Fiscal conservatives see wasted resources. Religious activists see inhumane conditions and damaged lives.
All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair.