For years, I argued that just as it took President Nixon to create an opening to China, it was going to take a conservative to eliminate mandatory minimum sentencing laws. How, then, was Eric Holder, the not-conservative attorney general, able to stick the shiv in the back of mandatory sentencing laws this week? Holder, it turns out, was the beneficiary of a perfect storm for sentencing reform.
For years now, conservatives have been at the forefront of sentencing reform all across the country. Texas, Georgia, Ohio, South Carolina and other red states have all enacted varying degrees of sentencing and prison reform. To be sure, many of these states were motivated to find budget savings after the economy collapsed but none were interested in going soft on crime.
The Texas Public Policy Foundation created a new organization of conservative leaders to boost these state efforts. Newt Gingrich, Jeb Bush, Bill Bennett, Ed Meese, and Grover Norquist are just some of the prominent conservatives who have endorsed the Right on Crime platform.
Norquist, best known for his anti-tax advocacy, has long been active in the campaign for federal sentencing reform. In 2009, he testified before Congress in favor of eliminating mandatory minimums. Former NRA President David Keene and anti-affirmative action hero Ward Connerly took the same position. When Congress took up the Fair Sentencing Act—legislation to fix the infamous 100:1 powder-crack cocaine sentencing disparity—law enforcement-friendly Republicans such as Asa Hutchinson, who headed the Drug Enforcement Administration (DEA) under President George W. Bush, vocally supported the bill. The late Chuck Colson’s Prison Fellowship, Southern Baptist Convention, and other religious conservatives joined the push for reform.
The tide of conservative support continued to grow, but it did not breach the levee until early this year. In March, Kentucky senator and Tea Party darling Rand Paul joined Senate Judiciary Committee chairman Patrick Leahy, a Vermont Democrat, to introduce legislation to restore judicial discretion over sentencing for all federal crimes. Their bill, the Justice Safety Valve Act, was endorsed by many Right on Crime leaders, conservative columnist George Will and more than 50 former federal prosecutors and judges.
What made Paul’s effort stand out was that he did not rest his support for reform on its potential for enormous budget savings. His argument was philosophical and moral. He told constitutional conservatives that mandatory minimums violated separation of powers and federalism values. He went to Howard University and told students there that mandatory minimums hurt the black and white communities.
Paul challenged the morality of punishing a nonviolent crime with a lengthy prison sentence and lifetime of collateral consequences. Finally, he stood up to the defenders of the prison-industrial complex and revealed that the emperor has no clothes, that thirty years of experience had proven that mandatory sentencing laws are not needed to keep us safe, and might actually keep us from being safer.
A week before Holder announced the Justice Department’s new policies, conservative support for sentencing reform reached a crescendo when the American Legislative Exchange Council (ALEC) voted to endorse model state legislation very similar to what Paul and Leahy introduced in Congress. Many observers seemed surprised that a Koch Bros.-funded entity would embrace bold sentencing reform. I was not. David Koch has donated generously and without fanfare to Families Against Mandatory Minimums for many years.
By the time of Holder unveiled his new policy, the sentencing reform water was so warm that he must have felt like he was stepping into a Jacuzzi. Conservatives at the state and national level had already “gone to China” and opened the door. Still, the attorney general deserves enormous credit. He not only expressed support for legislative reform, but also said the Department would do its part by changing its crime-charging practices.
In the end, Holder’s position is more important than his party affiliation. As attorney general, he is our nation’s top law enforcement officer. He knows he will be held accountable if national crime rates jump. But it is clear he believes that public safety can be improved without mandatory minimums. He is right, and he was right to say it so plainly. Yet there is no denying his hand was strengthened by the parade of conservatives who made that same argument, in word and deed, over the past several years.