This commentary originally appeared in The Washington Examiner on October 26, 2015.
Criminal justice reformers with conservative principles have been a driving force behind new legislation aimed at keeping families together and saving taxpayer dollars while enhancing public safety. Thanks to data-driven approaches that maximize efficiencies, conservatives are leading the way toward several key reforms.
The recently announced Sentencing Reform and Corrections Act is a wide-ranging piece of legislation that aims to reduce needlessly long prison sentences and correct the results of unjust public policy decisions of the past. This is accomplished with the use of "safety valves." These provisions allow judges to determine if a fully cooperating defendant could be effectively punished without serving the longer mandatory minimum sentences put on the books to go after drug kingpins. Unfortunately, it is often the lowest level offenders who wind up serving long prison terms for minor drug offenses. Companion legislation in the House mirrors the same ideas on sentencing as the Senate bill.
Reforms to the federal prison system are also on the table. These changes will help offenders get back on their feet and become productive citizens after doing their time by offering programs that allow them to accumulate "good time" credit, proving that they are motivated to contribute to society, and will have the skills necessary to do so.
The SAFE Justice Act, a House bill proposed earlier this year, goes even further by limiting criminal penalties for violations of regulations and expanding pre-judgment probation, two policies based in conservative principles.
Those who are familiar with the groundbreaking reforms in Texas, Georgia, South Carolina and several other red states will recognize many of these new proposals. Texas, with the leadership of Right on Crime, has led the way in promoting alternatives to incarceration that led to greater public safety, support for victims and protected taxpayers. As a result, Texas has not needed to build any new prisons, and has even closed three prisons, resulting in over $3 billion in savings.
As conservatives, our beliefs are rooted in reality. And the reality is that we are rightfully concerned with incarceration rates and the power of government to restrict liberty. Evidence tells us that in states where incarceration rates are lower there have been greater declines in crime. When funding that could have been spent on prisons is reinvested in re-entry programs that improve recidivism rates, more communities are safer. Federal legislation that reflects these facts should be touted as the conservative victories that they are.
That said, there is still plenty of work to be done at the federal level.Mens rea, or the criminal intent required to be found guilty of a crime, is often a weak standard, or may not be part of a criminal law at all. That means that even if you did not intend to commit a crime, you'll be found guilty. This is especially pernicious as federal administrative agencies have the power to levy criminal complaints against those who may not realize they are violating an obscure regulation, much less have any intent of breaking the law.
At the state level, legislators have passed bills that assign a default level of mens rea in order to protect citizens from wrongful prosecutions. Similar legislation is needed at the federal level.
There has also been a conservative groundswell around civil asset forfeiture. Civil asset forfeiture is the process in which police suspect citizens of using cash or other goods in the commission of a crime. Police are not required to prove that you have committed a crime. That means that you can lose your stuff without being convicted, or even charged, with any wrongdoing. New Mexico has completely banned the curious practice. Other states, such as Oklahoma, are also considering serious reforms. It is time for Washington, D.C., to follow the lead of the states and seriously consider similar reforms.
It is important to remember that all of the ills of the criminal justice system will not be solved in one fell swoop. Change is needed, but it must be carefully considered. This is a process, and it is a process in which conservatives are leading the charge.
Joe Luppino-Esposito is a policy analyst for Right on Crime and the Center for Effective Justice at the Texas Public Policy Foundation.