Project for Opportunity and Safety

Congressman Bill Flores can play lead role in reforming criminal drug sentencing

Originally appeared in WacoTrib.com
By: Mark Osler, Board of Contributors

Criminal sentencing policy will always involve a balance between two important ideals: Liberty and safety. Absolute safety can be achieved only through great expense in liberty and taxpayer money. Absolute liberty, of course, comes at the expense of safety.

Finding the proper balance between these goals is one of the most difficult jobs of government. Texas has led the nation in adjusting some drug sentences downward because the costs outweighed the benefits. Here, it turned out that lowering incarceration — when carefully targeted — coincided with lower crime rates. The federal government should make a similar incremental change and Congressman Bill Flores can play an important role.

Re-evaluating federal sentencing in a limited, rational way has been one of the few bipartisan projects of late on Capitol Hill. It’s an issue on which Sen. Mike Lee and Sen. Dick Durbin generally agree — as do foundations led by both George Soros and the Koch brothers. Moreover, the movement toward limited reform encompasses many of those actively involved in law enforcement. I am a member of a group called Law Enforcement Leaders to Reduce Crime and Incarceration, which advocates in favor of “a change in laws and practices to reduce incarceration while continuing to keep our communities safe.” Members include the police chiefs of New York, Los Angeles, Washington, Dallas and Oklahoma City, among many others. Meanwhile, the Republican National Committee recently issued a resolution commending the Texas reforms and urging Congress to follow suit.

In that RNC resolution, Rep. Flores’ party recognized two facts that should matter to conservatives: The federal prison population has risen 734 percent since 1980 and costs have risen nearly 600 percent. Reasonable reformers do not argue for a return to 1980 numbers. After all, the incarceration of some serious offenders has probably played a role in reducing crime rates during that same period. Rather, reform must focus on incremental changes that can reduce the prison population while continuing to incapacitate those who are most likely to cause further harm.

That approach is exactly what informs a bill now awaiting a vote on the Senate floor. The Sentencing Reform and Corrections Act has 37 co-sponsors, largely through the efforts of Texas Sen. John Cornyn. It’s a model of incremental change rather than radical reformation. For example, federal law has long directed a life term, without parole, for someone convicted of a third drug trafficking crime. This provision has proven to be overbroad, as many small-time narcotics sellers have been sentenced to terms far longer than those doled out to some armed bank robbers, terrorists, murderers and child-sex traffickers. The Senate bill would change the mandatory life term to 25 years, again without parole. That’s a better fit for the crime it covers.

These changes are not abstractions to those of us who have worked within the federal criminal justice system. One of my pro bono clients is a man named Ronald Blount, who seeks clemency. He is one of those who received a life without parole sentence for his third narcotics conviction. All three of those convictions, however, were for minor crimes that simply fed his own addiction. In fact, when arrested for the third offense (which largely consisted of him telling people where to go buy crack from someone else), he was so poor that he slept on the porch of his mother’s house and had only one change of clothes. Blount was no kingpin and his further incarceration solves no problem.

Those who know the situation best support these reforms. Most recently, the National District Attorneys Association, which represents 2,500 elected and appointed DAs, came out in support of the revised bill, arguing it addressed previous concerns and offers the hope of reducing crime and cost at the same time.

Rep. Flores has a chance to play a leadership role when this bill arrives in the House of Representatives. He represents a state that has already traveled this path and succeeded. And he has the ear of House Speaker Paul Ryan, who will decide how leadership approaches the bill. Of late, there have not been many chances to follow conservative principles to a bipartisan conclusion, but this is an opportunity for that type of rare success within Congress. It should not be ignored.

Formerly of the Baylor Law School faculty, Mark Osler is law professor at the University of St. Thomas School of Law in Minneapolis. He is author of the book “Jesus on Death Row” (2009).