The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform. The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective. This is the second of three commentaries.
Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause. Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview. They should be at the forefront of a serious federal reform agenda over the next four years.
Scaling Back Overcriminalization
There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott. They recognize that government tries to fix presumed problems by reaching for the overly blunt instrument of criminal law far too often. (As it is said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”) Given the new administration’s expressed concerns about regulatory overreach that limits job creation, it should be eager to work with reformers on this important issue at the intersection of regulation and criminal law.
Performance-Incentive Funding
One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies—such as Donald Trump—are likely to understand this truth intuitively: You get what you pay for. Jeff Sessions’s home state of Alabama passed PIF legislation in 2015, and the attorney general nominee may be interested in bringing sensible legislation from Montgomery to Washington, DC. More performance incentives in the federal system—and more incentives to embrace these strategies in state systems—should be near the top of the new administration’s agenda.
Combating Heroin Addiction
On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters—his base—to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency. This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction. On a broader note, Trump’s advisors have surely noticed that American attitudes towards drug policy appear to be changing. On election night, four states where Trump prevailed—Arkansas, Florida, Montana, and North Dakota—voted to legalize medical marijuana. A fifth state that Trump carried, Oklahoma, voted to reclassify several drug possession felonies as misdemeanors.
One final observation is in order about the broader prospects for criminal justice reform. In 2006, after Rick Perry won re-election as governor of Texas, few would have assumed that the state would adopt significant criminal justice reform legislation. Nevertheless, by May of 2007, Texas had passed a corrections reform package that is now the template for the most prominent state-level reforms in the country. So, while the new administration is likely skeptical of some criminal justice reform initiatives, that hardly means reform is impossible. Despairing advocates would be wise to remember the old Danish joke that it is hard to make predictions—especially about the future.
Vikrant P. Reddy is a senior research fellow at the Charles Koch Institute.
