Bipartisan Justice

Moments before landmark legislation to reduce prison sentences for low-level crack-cocaine offenses passed the House of Representatives in July, Rep. Lamar Smith, a Republican from Texas, issued a warning to the chamber: ?The Democratic Party teeters on the edge of becoming the face of deficits, drugs, and job destruction.? Smith hoped to play into the Democrats? decades-old fear that politicians who don?t endorse tough punishments lose elections. As it turned out, Smith was the only member to speak in opposition to the bill in either the House or Senate.

When Smith finished, some of his Republican colleagues, including James Sensenbrenner of Wisconsin and Dan Lungren of California, both prominent members of the House Judiciary Committee and hardly ?soft on crime,? addressed the chamber. They joined members of the Congressional Black Caucus in endorsing the legislation. Libertarian-leaning Ron Paul also supported the bill, even arguing the reform was weaker than he had wanted.

The Fair Sentencing Act was signed into law by President Barack Obama in August. The bill reduced the quantity-based sentencing disparity between crack cocaine and powder cocaine from 100 to one to 18 to one and eliminated the five-year mandatory minimum sentence for first-time possession of 5 grams of crack cocaine. The sentencing minimum for selling crack cocaine is now triggered when a defendant has at least 28 grams of the drug.

That Smith stood alone shows how much the political climate has shifted since the 1980s and 1990s, when Republicans and Democrats both argued that lengthy prison sentences were critical to stopping drug use and limiting crime. The harsh Anti-Drug Abuse Acts of 1986 and 1988, which created the sentencing disparity between crack and powder cocaine and the stiff mandatory minimums associated with possession of crack cocaine, were enacted at a time of hysteria about drugs and crime. Two decades later, both parties agree that crack-cocaine sentences were excessive, disproportionately affected African Americans, and unfairly punished low-level crack-cocaine offenses. What led to such significant change?

In the 1980s, the emergence of low-cost crack cocaine in urban neighborhoods and the violent turf wars associated with its sale frightened the public. News accounts warned that crack cocaine was instantly addictive and that a generation of children born to addicted mothers would be permanently brain damaged and become a societal burden. The response to these reports was almost entirely punitive and investments in prevention and treatment were limited.

At the federal level, Congress intended to use long mandatory sentences to nab drug kingpins and traffickers. Yet, particularly in the case of crack-cocaine offenses, defendants who became entangled in the system were low-level street sellers, couriers, and lookouts. Because the possession quantity that triggered a mandatory sentence was set so low, law enforcement and prosecutors focused on racking up convictions had little incentive to go after the more challenging cases involving drugs trafficked across state lines or into the country.

Over the next decade, political leaders of both parties exploited the public?s fear of crime and drug use at election time. Democratic presidential nominee Michael Dukakis was tarred as ?soft on crime? by then?Vice President George H.W. Bush in their 1988 contest when the Bush campaign aired a television ad revealing that Dukakis, as governor of Massachusetts, had supported a weekend furlough program for prisoners. Convicted felon Willie Horton never returned from his furlough; he committed a horrific rape less than a year later. In 1992, then-Gov. Bill Clinton eagerly tried to convince voters that he would be tougher on crime and left the presidential campaign trail to oversee an execution in Arkansas, his home state. In 1994, the Clinton administration and the Democratic Congress passed an omnibus crime bill, which contained $8 billion for building new prisons and also included fiscal incentives for states to adopt harsh sentencing laws.

This happened despite the fact that crime rates had already begun a downward trajectory in the early 1990s, one that continues today. Once this trend became more visible, there was less political advantage to attacking an opponent?s record on criminal-justice issues. This dynamic helped create political space for the Department of Justice under Attorney General Janet Reno to spearhead an initiative that began to consider how the many prisoners sentenced under the drug laws might re-enter society. In late 1999, the administration provided seed money to a few communities interested in developing ?re-entry courts.? It also launched a partnership program in five jurisdictions, pairing police, corrections officials, and community stakeholders in order to improve the re-entry process and reduce recidivism. The approach was later embraced by President George W. Bush. In a 2004 State of the Union address, he proposed a $300 million initiative to assist people released from prison.

?America is the land of second chances, and when the gates of prison open, the path ahead should lead to a better life,? Bush said. The unexpected comment launched a legislative campaign to enact bipartisan legislation to aid state and local governments in providing job training, education, drug treatment, and mentoring services for offenders exiting prisons and jails. An unlikely coalition formed between Congressional Black Caucus members Danny Davis of Illinois and Bobby Scott of Virginia, both Democrats, and conservative Republicans Rob Portman of Ohio, Chris Cannon of Utah, Lamar Smith of Texas, and Howard Coble of North Carolina. The effort received broad support from law enforcement, criminal-justice reformers, and the religious community.

Prison Fellowship, a Christian ministry organization founded by former Nixon official Chuck Colson after he was released from prison for a Watergate-related conviction, played a pivotal role in defining the legislative debate on reform. Colson and Pat Nolan, the organization?s vice president and a former California state assemblyman who served a 33-month term for a corruption charge, argued that the bill was a moral obligation for conservative Christian members of Congress. Jesus would not have turned away from the plight of prisoners, they said. Ultraconservative evangelical Sen. Sam Brownback, the legislation?s lead sponsor in the Senate, pushed his fellow Republicans to support the bill. In 2008, President Bush signed the Second Chance Act, which authorized $165 million for each of two years to fund re-entry services. Since then, however, funding has consistently fallen short of that amount.

The Second Chance Act was precedent-setting: It established bipartisan agreement that the justice system was flawed and plainly asserted that investment in social programs is a fundamental solution to stopping the cycle of crime. This political awakening was brought on by multiple factors, but the legislative strategies employed by the reform community were a critical element. The coalition that came together prioritized diversity and bipartisanship among its partners. Prisoner-rights organizations, corrections agencies, progressive and conservative faith groups, and law enforcement mobilized their constituents to pressure Congress. With the bill?s passage, a new consensus emerged that not every crime problem can or should be addressed with longer prison sentences.

The fiscal crisis has also led to bipartisanship in prison and sentencing reform. The historic incarceration rate, driven by the 40-year ?war on drugs? and harsh mandatory minimum sentences, now costs taxpayers more than $60 billion a year. Severe budget constraints are forcing states around the country to experiment with early-release programs and incarceration alternatives. This year, Gov. Mark Sanford of South Carolina, a Republican, endorsed sentencing reform, including the elimination of the state?s sentencing disparity between crack and powder cocaine. Meanwhile, Democrats in New York dismantled the draconian Rockefeller Drug Laws first passed in the 1970s, which disproportionately affected racial and ethnic minorities and handed out extreme sentences for low-level drug offenses. In 2009, for the first time in nearly 40 years, overall state incarceration levels declined.

Last year, Sen. Jim Webb, a moderate Democrat from Virginia, introduced legislation to study the nation?s criminal-justice system for the first time since 1965. The legislation attracted bipartisan co-sponsorship from Republican Sens. Lindsey Graham and Orrin Hatch, which was particularly notable since Webb publicly argued that the country?s incarceration rate is too high. The bill passed in the House of Representatives without opposition and moved by voice vote through the Senate Judiciary Committee.

Despite these encouraging developments, it?s unclear whether reform will sustain its current momentum. As of this writing, the full Senate had not voted on Webb?s bill. And while the economic crisis has provided an opportunity to promote sentencing reforms, it has also dampened enthusiasm for investing in prevention and re-entry, particularly among Republicans. For fiscal year 2011, the Senate Appropriations Committee recommended slashing more than 50 percent in spending for Second Chance Act programs. The act also expired in September and has not yet been reauthorized. Congressional Republicans and Democrats say they are committed to the bill?s renewal in 2011, but insiders believe authorized funding levels may decline. Many states that quickly took up re-entry when new federal dollars were available may soon lose their enthusiasm if the funding disappears.

While criminal-justice reform has made tremendous progress in the past decade, we need to move aggressively to protect innovative programs and funding that have charted a new course. If current trends continue, one in three black males and one in six Latino males born today will do time in prison at some point during their life. To ensure that doesn?t happen, unlikely allies must continue to work together. It took consensus to create this mess, and it will take the same bipartisanship to get us out of it.