Forgive and Forget

On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform.

Senator Rand Paul (R-KY) speaks to the press outside after listening to President Obama speak about poverty during an event in the White House on January 9, 2014 in Washington, DC.
Sen. Rand Paul (R-Ky.) is pushing reforms in drug sentencing. Above, Paul speaks to the press on Jan. 9, 2014, in Washington.

Photo by Brendan Smialowski/AFP/Getty Images

Rand Paul had been talking for 20 minutes, strumming all the familiar chords. He was the gala keynoter for the annual American Principles Project, a 5-year-old social conservative group best known recently for running TV ads against Liz Cheney. (The ads, funded by APP’s political arm, attacked Cheney’s advocacy for “government benefits for gay couples.”) Paul had criticized the New York Times, defended the now-lapsed cuts of sequestration, and warned that a “Republican-lite” party was doomed to lose. Standard stuff.

So he started challenging the crowd. “As Christians, we believe in forgiveness,” said Paul. “I think the criminal justice system should have some element of forgiveness.” There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along.

“These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community—3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate. You don’t have as good an attorney if you don’t have money. Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him.

“I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause. Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights. Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee. If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes. Ten-year sentences would become five-year sentences. Five-year sentences would shrink to two years.

Every Democrat had voted “aye”—as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House. The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders.

Both parties are raring for it. In a subtle kind of way, they’re racing to take credit for it, too. In 2010, President Obama signed the Fair Sentencing Act into law, shrinking the disparity between crack and cocaine sentences from 100–1 to 18–1. In 2013, the re-elected Obama administration started talking more openly about sentencing reform. “The war on drugs is now 30, 40 years old,” Attorney General Eric Holder told NPR last year. “There have been a lot of unintended consequences. There’s been a decimation of certain communities, in particular communities of color.”

Holder, who’s been officially censured by the Republican House of Representatives, suffered no talk radio/outrage machine/political backlash for his message. The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees. Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968. They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism. “In recent years,” said Richard Nixon in a 1968 campaign ad, “crime in this country has grown nine times as fast as population. At the current rate, the crimes of violence in America will double by 1972.” As he talked, images of dead bodies, guns, and wild-eyed protesters played over a soundtrack of atonal horn blasts and drumbeats.

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime. Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis. As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”

But it’s one issue at a time, and sentencing reform is getting a look before felon vote restoration does. Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party. “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline. It’s tough to justify some of these incarcerations and the cost. I understand the argument that it gives law enforcement another card to play, plea bargains—I understand that. But we’ve gone too far.”

In the Judiciary Committee, the average age of the Republicans who voted for reform—Sens. Ted Cruz, Jeff Flake, and Mike Lee—was 45. The average age of the Republicans who voted no—Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions—was 69. The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.” But they remembered the bad old days, and the young guys didn’t.

“They don’t remember how bad crime was in the 1970s, when people were terrorized and murders were three times what they are today,” said Sessions. “There’s a libertarian concern that the government is incarcerating too many Americans. They don’t think too much of that.”

They don’t, but they’re not naïve. Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill. He was an immigration lawyer before he entered politics.

“I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained. “Then, when I was in the state legislature, I was seeing these budgets continue to grow. In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with. And I don’t think that’s right. Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.

“I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent. The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age—about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders. Here is a cause whose time should have come many, many years ago.