Monday Morning Thoughts: Conservative Approaches to Criminal Justice Reform

Since July, the American Conservative has an ongoing series of currently 12 articles in collaboration with the R Street Institute exploring conservative approaches to criminal justice reform.

Here is the introduction from first edition – July 6, 2018 – “Where the Right Went Wrong on Criminal Justice.”

Conservatism is not a monolith. There is no one way to be a conservative, think like a conservative, or define the conservative outlook. But there are certain bedrock principles of those on the Right: limited government, economic responsibility, and a belief that our Founding Fathers laid out sacrosanct rights in our Constitution. A firm belief in the importance of family, morality, and, for some, faith has generally guided the application of these principles. While no party can represent the whole of conservatism, the Republican Party’s role as the dominant right-of-center force in modern American politics makes it a good place to take ideological temperatures on the Right.

When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.

These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.

The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform.

Here are a few other highlights from the series – the eighth installment – “Ending the American Bail Racket Forever.”

The right to be free from excessive bail is enshrined in the 8th Amendment of the Constitution, yet this fundamental protection has failed to prevent the pretrial detention of hundreds of thousands of people every year who are unable to afford bail.

Others can secure temporary freedom but only at exorbitant cost to themselves, family, or friends through the services of a bail bondsman. The government is not spared from the costs of bail either, spending around $13.6 billion every year on pretrial detention. As it harms almost every party involved, it is easy to conclude that our system of bail is broken.

These failings have spurred reform across the United States, with a handful of jurisdictions even going so far as to reduce reliance on, or outright eliminate the use of, money bail. This progression has been cheered on by many, but it’s also been met with great resistance—no surprise here—from the bail bond industry.

…

Generally, the court focuses primarily on two concerns in making this decision: the risk of flight and the potential danger the suspect may pose on the outside. In some jurisdictions, bail is set at predetermined amounts based on the severity of the crime rather than the defendant’s character, presumably to ensure equal—if not quite individual—justice.

With law enforcement making over 10 million arrests every year in the United States, a growing number of Americans regularly face the prospect of a money bail. For example, the percentage of felony defendants required to post bail rose from 37 percent in 1990 to 61 percent in 2009. Numbers this large have ensured that commercial bail bonds remain a multi-billion dollar business that impacts hundreds of thousands of Americans every year.

Furthermore, while large scale data on bail remains elusive, the most recent Bureau of Justice Statistics report estimates that 38 percent of defendants in the nation’s largest counties and cities were detained prior to trial, and that nine in 10 of these defendants had a money bail set but were unable to post it.

The negative ramifications of even a short pretrial detention extend well beyond the loss of freedom for the individual. A jail stay can be personally traumatic; it can put a person’s job and housing in jeopardy and throw family and childcare obligations into chaos.

And let’s not forget that all of these circumstances are being visited upon an individual who is still considered legally innocent until proven guilty.

The 11^th installment – “Drug Rehab in Prison? You Must Be Joking.”

I’d always believed that prisons in the United States had programs whereby people who had drug and alcohol problems could get clean while they were incarcerated. The thought behind this was that it was better to get a prisoner clean, keep him clean through his sentence, teach him how to stay clean, and then send him home where he could become a productive member of society and not be caught up in a never-ending cycle of crime and incarceration.

I was completely wrong. No such program exists, at least not on a national level.

I saw this firsthand and I saw it every day. Beginning in 2013, I spent 23 months in the Federal Correctional Institution in Loretto, Pennsylvania, after I blew the whistle on the CIA’s torture program. At least 50 percent of the prisoners there were in on drug charges, and many of them were also addicts or alcoholics. There were simply no resources for them. None. If they came in addicted, well, they just had to suffer.

The 12^th installment – “Fighting Corruption in the U.S. Criminal Justice System.”

Here he argues: “There will never be true reform until law enforcement and prosecutors are held accountable for breaking the rules.”

Over 2,000 people have been exonerated from criminal convictions since 1989. But to blame mere incompetence or simple negligence would be a mistake. In the majority of these cases, it was criminal or unethical behavior by witnesses, law enforcement, and even the government that put these individuals behind bars in the first place.

Without emphasizing integrity and accountability in the criminal justice system there will never be true reform. After all, 52 percent of these exonerations involved official misconduct, according to the National Registry of Exonerations.

While it would be quite difficult to find a case in which law enforcement took illegal measures to free a guilty man, we’re inundated with a litany of scandalous conduct by law enforcement and prosecutors apparently willing to bend the rules to make sure potentially innocent people never see the light of day.

Bottom line: criminal justice reform is not just a purview of the left and this is not a left-right debate.

—David M. Greenwald reporting