On Sentencing Reform, Are Libertarian-Leaning Republicans Joining Holder, or Is It the Other Way Around?

A story that ran on the front page of yesterday’s
New York Times describes
an “unlikely” alliance between Attorney General Eric Holder and
libertarian-leaning Republicans that “may make politically possible
the most significant liberalization of sentencing laws since
President Richard M. Nixon declared war on drugs.” The
Times is right that the alliance is significant, but
its gloss on the motivation of Sen. Rand Paul (R-Ky.) and
other Republican reformers is a bit misleading:

For Mr. Holder, addressing sentencing laws is central to a
second-term agenda that also includes defending voting rights and
same-sex marriage. Black Americans have disproportionately received
lengthy prison terms and are extremely overrepresented in the
inmate population.

Libertarian-minded Republicans see long prison sentences as an
ineffective and expensive way to address crime.

Shorter version: Holder wants justice, while Republicans are in
it for the money. Yet Paul has passionately and eloquently
condemned the injustices caused by mandatory minimum sentences. At
a Senate hearing last September, he
said:

The injustice of mandatory minimums is impossible to ignore when
you hear the stories of the victims….There is no justice here. It
is wrong and needs to change.

During the same hearing Paul highlighted the racially
disproportionate impact of mandatory minimums:

If I told you that one out of three African-American males is
[prohibited] by law from voting, you might think I was talking
about Jim Crow, 50 years ago. Yet today a third of African-American
males are still prevented from voting because of the war on drugs.
The war on drugs has disproportionately affected young black males.
The ACLU reports that blacks are four to five times more likely to
be convicted for drug possession, although surveys indicate that
blacks and whites use drugs at about the same rate. The majority of
illegal drug users and dealers nationwide are white, but
three-fourths of the people in prison for drug offenses are African
American or Latino.

Paul took up the same theme in an April 2013
speech at Howard University. Furthermore, the sentencing reform
bill that Paul and Sen. Patrick Leahy (D-Vt.) introduced last March
goes farther than the bill
approved by the Senate Judiciary Committee in January, which is
the one the Obama administration is backing. The Paul-Leahy bill,
known as the Justice
Safety Valve Act, would effectively make mandatory
minimums optional, authorizing judges to depart from them in the
interest of justice. By contrast, the Smarter
Sentencing Act, introduced by Sens. Richard Durbin (D-Ill.)
and Mike Lee (R-Utah) last July, would make the 2010
reductions in crack sentences retroactive, cut the mandatory
minimums for certain drug offenses in half, and loosen the criteria
for the “safety valve” that allows some defendants to escape
mandatory minimums. Those are
important reforms, but they are substantially less
ambitious than the change proposed by Paul, who told the Senate
Judiciary Committee, “I am here to ask that we begin today the end
of mandatory minimum sentencing.”

In short, while Holder deserves credit for
decrying and seeking to ameliorate the harm caused by our
excessively punitive criminal justice system, he does not have a
monopoly on sympathy for people who do not belong in prison,
outrage at their predicament, or concern about the relationship
between skin color and draconian sentences. If anything, Rand’s
record on these points is stronger.

Looking beyond sentencing policy, the civil libertarian
credentials of Paul and several of his Republican allies are also
impressive, especially when compared to the Obama administration’s.
The Times notes that they “have accused the Obama
administration of trampling on personal freedom with drones,
wiretaps, tracking devices and too much government.” In fact, “Some
Republicans say that they are the ones being consistent on matters
of protecting liberties, and that Mr. Holder’s push for changes to
the sentencing laws is a step in their direction, not the other way
around.”