Don't Look Now: The Right is Leading the Way To Saner Drug Policies

By Edmund Newton 04/03/14

After years of intolerance, some leading conservatives and red states are now edging past liberals to reform zero-tolerance drug laws to favor treatment over prison.

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Four years ago, Craig DeRoche was one of the big shots of Republican politics in Michigan. A six-year member of the State House of Representatives, he had earned a reputation as one of the state’s fiercest fiscal watchdogs, leading eventually to a lofty assignment as Speaker of the House. He was co-chairman of Mitt Romney’s Michigan campaign committee in 2008 and a full-fledged member of the state’s no-nonsense, tax-averse, budget-shaving conservative establishment.

Then, one evening in 2010, after he had left the legislature to start his own insurance business, DeRoche was arrested on suspicion of drunk driving. Police in Saline, Michigan, said they found DeRoche so inebriated that he couldn't stand up without assistance. A breath test showed his blood-alcohol content was more than three times the legal limit.

It was the beginning of a radical career change for DeRoche – one that mirrors a remarkable change in direction for the American Right. After another alcohol-related arrest – this one a headline-making incident involving gun charges as well – a chastened, recovery-minded DeRoche found himself doing volunteer work for Justice Fellowship, ex-Watergate conspirator Chuck Colson’s national organization for reform of the criminal justice system based on Christian principles.

“I pinch hit for Chuck at a U.S. Senate hearing,” recalls DeRoche, a bulky man with short ginger-colored hair that’s going to gray. “I gave a speech about conservative politics and addiction. Afterward, I told Chuck, `If I can help, I’ll come down as often as I can.’ I thought I'd be a volunteer speaker. But Chuck said, 'God has a bigger plan for you. You’re needed here.’”

As DeRoche immersed himself in the movement to offer those caught in the American criminal justice system a path to redemption (he soon became the head of the organization, when Colson died seven months after DeRoche came aboard), the political right was gravitating toward a similar stance. The numbers of imprisoned Americans had snowballed at such a pace behind harsh anti-drug laws that even staunchly tough-on-crime Republicans, who had long rallied behind the mantra “criminals behind bars cannot harm the general public,” were beginning to look for alternatives.

There are now more than 1.5 million people in custody in state and federal prisons, according to Bureau of Justice statistics; add those locked up in jails awaiting trial and the total rises to 2.2 million. The U.S. has not only the highest imprisoned population in the world but also by far the highest number of prisoners per capita, with 716 per 100,000 people. The next highest rates are in Rwanda with 492 per 100,000 and Russia with 475. 

The U.S. totals include about half a million who have been incarcerated for drug offenses, most of them serving longer time under mandatory minimum sentencing, according to the Sentencing Project, the national research and advocacy group. More than half of those in federal prison are there for drug crimes. Corrections officials have offered educated guesses that as many as 70 or 75% of those under their custody have committed crimes for which drugs or alcohol were a factor.

It’s not cheap keeping people locked up. The burden of enforcing all those anti-drug laws has prompted state expenditures on corrections to go up by a factor of 8, from $6.7 billion in 1985 to $53.3 billion in 2012.

By now, reforming the old lock-'em-up-and–throw-away-the-key program is the cause celebre of the moment for conservatives. In recent months, there have been almost daily reports in mainstream media about this issue that has suddenly drawn extraordinary bipartisanship. In March, the Conservative Political Action Conference – an annual gathering point for the most conservative of conservatives - scheduled a special forum on criminal justice reform, with Grover Norquist and Texas Governor Rick Perry especially outspoken in favor of reducing sentences for non-violent offenders and reducing prison populations.

“You want to talk about real conservative governance?” said Perry, whose state is known worldwide as Action Central for capital punishment, with more than 260 prisoners lethally injected under Perry’s watch alone. “Shut prisons down. Save that money. Stop the recidivism rates—lower them. That’s what can happen with these drug courts.”

In fact, Texas has actually shut down one prison, because of declining conviction rates and, since 2007, cut its prison population by 11% through diversion programs like drug courts and probation.

Criminal justice reform has created some very odd bedfellows. 

Tea Party principals like U.S. Senators Ted Cruz (R-Texas) and Rand Paul (R-Kentucky) are eagerly joining forces with staunch liberals like Senators Richard Durbin (D-Illinois) and Al Franken (D-Minnesota) to co-sponsor reform measures. Conservative governors like Perry in Texas and Nathan Deal in Georgia are opening the doors of state prisons for non-violent offenders, many of them caught in the zero-tolerance anti-drug laws of the 1980s, or sending them to drug courts where they’re offered treatment rather than incarceration.

Even Newt Gingrich, who once argued fervently for big expenditures to build new prisons as part of his 1994 Contract With America agenda in the 1990s, talks about the need to ratchet back the “astronomical growth in prison population.”

In truth, Republicans often outgun Democrats nowadays in their zeal for reform. While incarceration rates were falling in Perry’s red state by 20%, largely because of sentencing reforms, blue state California faced a crisis of its own. Gov. Jerry Brown tried to resist a federal court order to reduce its overcrowded prisons by releasing non-violent offenders, vetoing a bill to reduce sentences for those convicted of low-level drug offenses. (The state eventually transferred a lot of non-violent prisoners to county lock-ups, but it’s still under federal pressure to release 5,000 of its total of about 120,000.) 

At the Congressional level, however, the new tune reform-minded members are whistling is: bipartisanship.

For those who have remarked on rampant ideological face-offs in the U.S. capital, especially during the Obama administration, the outpouring of bipartisanship is almost freakish.

At a recent Senate Judiciary Committee hearing, Senator Durbin smiled warmly at Marc Levin from the Texas Public Policy Foundation, a conservative think tank, and confessed that Levin was making him “very nervous.”

“We keep inviting you to these hearings, this Texas conservative, and I find myself agreeing with you more and more,” Durbin said.

It’s contagious, this drive for reform. High-profile conservatives are even boasting openly of their bona fides as longtime critics of tough justice. Anti-tax activist Norquist talks of visiting lifers 10 years ago at Walpole Correctional Institution in Massachusetts and pressing fellow conservatives on prison reform. Cruz, who has put his name on a sentencing reform bill introduced by Durbin, reminisced at the Judiciary Committee hearing about his pro-bono work for John Thompson, a wrongly accused Death Row resident in Louisiana.

“It was a powerful experience personally, getting to know Mr. Thompson,” Cruz said.

All of this has led to some promising legislative initiatives. Two reform bills are pending in the Judiciary Committee. One would allow judges the discretion to override mandatory minimum sentences in lower-level drug cases and spread the effects of an earlier bill to reduce sentences for crack cocaine offenders. This is Durbin’s bill, with co-sponsorship by 16 other senators, including Cruz, Paul and Mike Lee (R-Utah), another prominent Tea Party Senator. Another bill would set up an early release system, along with skills training, for low-risk prisoners.

At the state level, the pace of legislative change has been almost feverish, driven by the impact of the correctional system on state budgets.

Since 2007, 13 states, including red states like South Carolina, Louisiana, Kentucky and Arkansas, have emulated Texas, revising mandatory minimum sentencing and using diversion programs to reduce incarceration rates.

DeRoche’s organization, which lobbies state legislatures for reform, identifies at least 13 states which are currently considering a variety of liberalizing criminal justice reforms. These range from eliminating mandatory minimums to loosening many of the post-prison restrictions which, according to critics of the system, tend to raise recidivism rates. Most recently, Republican-dominated Mississippi approved an alternative-sentencing bill, giving judges the flexibility to, among other things, order treatment for drug users as opposed to incarceration.  Supporters say it could save the state $266 million in prison costs over the next 10 years.

Marc Levin, the Texas conservative, said in an interview that the simple math of correction expenditures is a powerful argument for reform. “It’s very expensive to incarcerate someone in Texas,” he says. “It costs about $50 a day, which is on the low end. It costs $3.40 a day for probation, with half of it paid by the probationer himself.”

Other states are considering measures to allow released offenders to receive food stamps while they get back on their feet  (nine states specifically forbid them) and to “ban the box” on employment applications, which now require ex-offenders to reveal their offender status by checking a box, rendering them un-employable. In Kentucky, state legislators, with support from Rand Paul, are considering a bill to restore voting rights to released felons. In Virginia, some lawmakers want to raise the state’s threshold for a grand larceny charge to $500 (reducing charges for those who steal as little as $200 from felony to misdemeanor status). 

California is one of a number of states which are considering reforms in its use of solitary confinement, aiming to eliminate the practice for juveniles.

After hearing testimony from Damon Thibodeaux, who spent 15 years in solitary on Death Row at Angola Prison in Louisiana before being cleared of a murder conviction in 2012, Judiciary Committee members questioned the practice of keeping prisoners in 6-by-10-foot cells for years at a time.

“There’s no state that’s not taking a hard look at their administrative segregation policies,” Rick Raemisch, executive director of Colorado Department of Corrections.

Keeping prisoners in solitary is an added expense in itself. Many states have started to radically reduce the numbers in their administrative segregation units as cost-cutting measures, Levin says. For example, Mississippi has reduced its numbers from 1,300 in 2007 to 300 today, at a savings of $6 million.

Some critics see a certain irony in the fact that the laws that conservative reformers now seek to change were enacted in the midst of a tough-on-crime surge in the 1980s, instigated largely by conservative Republican politicians.

Norquist contends that much of the lock-'em-up sentiment in that era came as much from Democrats as Republicans, who bowed to the greater street smarts of politicians representing high-crime inner city districts. “Most Republicans didn’t have a lot of experience in that area,” he says.

Norquist adds that the impetus for the 1986 federal law concerning crack cocaine, which imposed much greater sentences for possession or sale of crack than of powder cocaine, emanated not from Republicans but from Democrats, particularly the Congressional Black Caucus. The law was modified in 2010, eliminating a five-year mandatory minimum for first-time offenders and reducing the famous 100:1 ratio of crack to powder cocaine for equivalent penalties to 18:1.

Rep. Charles Rangel (D-New York) responds with irritation to such Republican jibes. Rangel, one of the founders of the Congressional Black Caucus in 1968, asserts that the “draconian sentencing laws” stemmed not from black politicians but from Republican tough-on-crime initiatives dating back to President Richard Nixon’s policies through President George H.W. Bush, with his infamous Willy Horton campaign ad. “The facts do not support these assertions,” Rangel says.

Republicans point out as well that it was not just governors from their own party but Democratic governors, like New York’s Mario Cuomo, who rode the prison-building wave of the 1980s and `90s. Still, plenty of Republican governors - like George Deukmejian and Pete Wilson in California, whose two administrations, stretching from 1983 to 1999, built 20 new prisons - followed the trend of big-time capital construction.

“It was kind of like 'Field of Dreams,’” Levin says, explaining the wave of incarcerations that quickly loaded up the prison system. “'Build it and they will come.’”

Levin concedes that much of the tough-on-crime fervor was driven by Republicans, particularly in his own state. But circumstances have changed, including a general drop in crime, “creating more space to discuss these issues,” he says.

There have also been technological developments allowing for supervision of probationers in their communities with greater ease, Levin says. These include electronic bracelets, drugs that block opiate receptors for drug abusers, ignition screeners for DUI offenders, and voice recognition technology that can keep track of offenders through automated systems.

Most of the reforms that have been enacted have the fingerprints of Levin, DeRoche and other conservative reformers who travel the country, talking up ways of changing the system.

DeRoche says Justice Fellowship has a kind of “floating war room” to keep track of its work on multiple fronts. Currently the organization is working, among other places, in Kentucky to restore voting rights to released felons, in Louisiana to reduce marijuana possession, in Maine, Florida and Wisconsin on Good Samaritan Bills, allowing drug users to respond to medical emergencies involving overdoses by fellow users without fear of prosecution.

“The fear is that they [the addicts] will be brought in themselves because they're using,” DeRoche says.

All of these states, except Kentucky, have Republican governors.

One of the organization’s proudest achievements was its contribution to the amending of California’s harsh three-strikes law in 2012. Voters voted to make third-strike sentences apply only to serious or violent felonies and to allow allow those serving third-strike sentences to petition for sentence reductions.

DeRoche and his staff have also been briefing U.S. senators about the two federal reform bills pending in the Judiciary Committee, which are reportedly ready to be introduced to the full Senate later this year, possibly as a single bill.

DeRoche has an engaging personal style which allows him to reach fellow conservatives at a gut level. He talks openly of his own alcohol addiction, which he says went on for 29 years, beginning at the age of 14.

“You can't have a discussion of what’s going on in the criminal justice system without talking about what’s going on with drugs and alcohol,” he says.

DeRoche believes passionately that, by failing to address addiction as a sickness, the system will continue to be costly, inhumane and ineffective. “We should be dealing with addiction rather than loading people up with felonies and saying, `That’ll teach them,’” he says.

The people DeRoche reaches out to – governors, legislators, policy makers – are surprisingly receptive to his pitch, he says. And it’s not just because the reforms have proven to be so cost effective.

“I try to use my experience to bring strength and hope to others,” says DeRoche. He has found in his personal discussions with the powerful, often conservative, political leaders that “they already know a lot about addiction,” he says.

“Most of them have stories about a child, a niece or a nephew, someone they knew in college. Addiction doesn't affect one side of the aisle more than the other.”

DeRoche says it’s “natural” for conservatives to believe that harsh measures will solve the problems of crime and addiction. “They've been told for 30 or 40 years that this is the answer.” DeRoche uses their personal familiarity with addicted friends or family members to engage them at a policy level.

“Most politicians want to have a sound bite that will fix the problem,” DeRoche says. “A problem with crime? We need more cops on the streets. Kids aren’t learning math? We need to hire 1,000 more math teachers. But addiction breaks that mold.”

Criminal justice reform offers ample opportunities for bipartisanship, DeRoche believes, because the discussions ultimately come down to a realization that liberals and conservatives are expressing the same ideas with different terminologies.

“It ends up with the liberal secular guy saying, `That’s what I mean when I talk about fairness,’ and the conservative might say, `OK, that’s what I mean when I talk about what Jesus said.’ They're both talking about the same thing.”

Edmund Newton is a Washington DC based writer, formerly on staff at the LA Times, Newsday and the New York Post. He has written for People, Time, Ladies Home Journal and Essence among other publications.

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Edmund Newton is a Washington DC based writer, formerly on staff at the LA Times, Newsday and the New York Post. He has written for People, Time, Ladies Home Journaland Essence among other publications. Find him on Linkedin.