Why some conservative Republicans are leading the fight against over-incarceration
Posted May 4
Salt Lake City native Weldon Angelos, an aspiring hip hop producer sentenced to 55 years without parole for his first marijuana-dealing arrest, is an unlikely Republican poster child.
But his case was cited so frequently and passionately by Utah Senator Mike Lee from the time of his election in 2010 that, when the two men finally met last summer, Lee apologized and said he hoped Angelos didn’t mind that he had turned him into a celebrity, Lee said.
Angelos said no apology was needed, noting that Lee’s dogged promotion of the case played a key role in his unlikely release after 13 years. For federal crimes, there is no probation, only small reductions for good behavior so, without Lee’s intervention, he would have been in prison until he was an old man.
Lee's crusade was part of a larger trend. He belongs to a new breed of Republican leaders at state and federal levels who are replacing decades of "tough on crime" policies with “smart on crime” alternatives that are showing results in the states and gaining traction in Washington. Conservative criminal justice reformers outside of government, ranging from anti-tax crusaders calling for smaller government to religious ministries that preach redemption, have also seized the issue.
Many Democrats, of course, have long been willing to embrace reform over punishment. Of the 36 cosponsors on a major bipartisan Senate bill last session, 20 were Democrats, and many GOP senators, including Jeff Sessions, the new Attorney General, continue to oppose reforms.
But Republicans like Lee are moving their party in a direction typically seen as the domain of Democrats, creating the rare opportunity for bipartisan breakthroughs.
A Rip Van Winkle who fell asleep in 1995 might be stunned to see today's leading GOP officials — whose predecessors seemingly never met an enhanced sentence they didn’t like — speaking out against extreme prison terms.
In 2003, Angelos was a 23-year-old music producer and devoted father of two young boys. He began selling marijuana to make ends meet and was arrested after selling pot to undercover federal informants in three separate stings, all three of which the prosecutors arranged before making one arrest, Angelos' first.
When Angelos made the sales, he had a handgun in the room, a gun he did not touch or mention, but its mere presence was crucial. Under federal law, using a firearm during drug trafficking carries a mandatory five years for the first offense and 25 for each subsequent instance. Having conducted three stings for one arrest, the prosecutors "stacked" the charges, so Angelos faced 55 years without parole, essentially a life sentence, for a first-time, nonviolent marijuana arrest.
When Angelos was sentenced in 2004, Lee was an Assistant U.S. Attorney in Salt Lake working alongside the federal prosecutors pursuing Angelos. Lee’s job was to handle appeals, and he vividly remembers being handed the Angelos file to evaluate the risks of losing on appeal. Lee knew immediately that Angelos stood little chance on appeal but, as he read the decision, Lee was stunned.
“I had seen harsh sentences,” Lee said, “but this was taking it to a whole new level.”
Lee was also haunted by Judge Paul Cassell's unusual sentencing statement. Noting the sentence was inhumane but the law left him no choice, Cassell pled with President George W. Bush to use his clemency power — and with Congress to change the law. The judge also noted disturbing comparisons: an aircraft hijacker would get 24 years, a second degree murderer 14 years, and someone who raped a child just 11 years.
Sen. Lee would later write in a letter to President Barack Obama, pleading for clemency for Angelos, “A sentence for selling marijuana that is five times longer than a child rapist’s is not only unjust — it is inexplicable.”
Last year, Lee co-sponsored a legislative package that would have addressed over-criminalization and excessive sentences along multiple fronts. That bill ultimately stalled, but renewed efforts are under way. President Donald Trump's son-in-law, Jared Kushner, has emerged as pro-reform, meeting in March with key senators, including Lee and Sen. Chuck Grassley (R-IA), the Judiciary Chair. Many observers think, if any major bipartisan legislation has a chance this session, it will involve making the federal penal system smarter, cheaper and more humane.
One of the first expressions of conservative criminal justice reform came in 2004, when President Bush proposed a policy package to lower incarceration rates and smooth prisoner re-entry success.
“America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life,” Bush said.
That position turned some heads.
“It was stunning from any president, let alone from a conservative Republican, ” said Jeremy Travis, president of the John Jay College of Criminal Justice in New York City. “And then to announce what became the Second Chance Act as a State of the Union initiative was remarkable."
At the state level, the rise of conservative criminal justice reform is usually traced to Texas. Like many states in the 1990s, Texas had lengthened criminal sentences and curtailed parole. Far more prisoners were coming in than going out, and the prison population exploded. Texas answered with a building binge, adding over 100,000 new prison beds in just one five-year period in the 1990s.
And things were not getting any better. Or any cheaper.
When Jerry Madden became chairman of the corrections committee in the Texas House in 2005, his new position came with a simple assignment from the speaker: "Don't build new prisons. They cost too much."
Looking at projections that showed 17,700 more beds would be needed by 2012, the equivalent of seven large prisons costing over $250 million each, Madden knew his job wasn't going to be easy. He was going to have to keep a lot of people out of prison and keep others from coming back. That, he knew, meant changing people, not warehousing them — a radical shift in philosophy.
Working with John Whitmire, his counterpart in the Democrat-controlled state senate, Madden scrutinized every step in the incarceration food chain. In the end, they put together a series of reforms that diverted $241 million from prison construction into treatment and diversion programs. The plan won the enthusiastic support of Republican Governor Rick Perry and became law in 2007.
Texas had become the first state to launch a Justice Reinvestment Initiative, in which a state takes funds that would otherwise go to locking people up and ploughs a chunk of that money into helping people get out and stay out. Ten years later, 32 states have joined Texas with major Justice Reinvestment packages, according to the Pew Charitable Trusts.
The results of the pioneer JRI in Texas were not all that everyone hoped, but incarceration rates have fallen by 16 percent, said Adam Gelb, director of the Public Safety Performance Project for the Pew Charitable Trusts, whose role is to oversee and fund dozens of state-level criminal justice reform efforts. By 2013, the Austin American-Statesman would report that the "state corrections system now has more than 11,000 empty bunks. One state prison has closed, and two more are on the chopping block. County jails have more than 21,000 empty beds of their own."
A disproportionate number of states that have launched JRIs lean Republican. Of the 33 states with JRIs, the average GOP vote in the 2016 presidential election was just over 52 percent, compared to 46 percent nationally.
So far, Gelb said, most of these reform states are not only leading the way, but delivering and even expanding on their promises.
"We used to fear that a state that does these reforms will wash their hands of it and move on," he said. "But we’ve actually seen the opposite, with states coming back when they see it working and saying, 'OK, let’s see what else we can do.'”
Gelb also sees state-level success as the answer to a stubborn rear guard of conservatives, old dogs who came to power in the tough on crime 1980s and 1990s who are now struggling to learn new tricks.
As more states demonstrate that public safety can improve while saving money and shrinking government, Gelb said the holdouts in Washington and the state houses will come around.
“Downsizing prisons and reinvesting in more effective and cost-effective alternatives is already permeating state capitols and is working its way to Washington,” Gelb said, “and we’re seeing more and more members pointing with pride to their home state success.”
Some skeptics on the left have long suspected that the new conservative interest in revamping criminal justice centers mainly on saving tax dollars, that the commitment lacks the staying power needed for real policy transformation.
But others see ample evidence to challenge this view. Among them is Gelb, who said conservative roots run deep in criminal justice reform.
Boiled down to basic ingredients, Gelb sees the conservative appeal for smaller prisons resting not just on fiscal discipline, but also limited and accountable government, family preservation and the spiritual value of redemption.
“When you have nearly one of 100 adults behind bars, that’s not limited government,” Gelb said.
One conservative pit bull who embodies the various, overlapping conservative roots of support for justice reform is the iconic Grover Norquist, president of Americans for Tax Reform, which Norquist founded in 1985.
Norquist wants smaller prisons and fewer prisoners, but his motive is not just to save money. He also wants to restore a sense of proportion, restraint and even dignity to government.
“Mandatory minimums are like cursing in the middle of a sentence to indicate you are serious or angry,” he said.
And Norquist seems as worried about the impact of excessive punishment on families as he is about budgets.
“These obviously aren’t Ozzie and Harriet families,” Norquist said, “but take the father out of a home that is already teetering, and you just push it over the edge.”
Long before leading Republican politicians embraced criminal justice reform, Christian advocacy groups were pushing them there. It was a friendly push because, as the Pew Research Center noted in 2015, 70 percent of Republicans are white Christians.
Among the Republican Christian leaders pushing for reform was Chuck Colson, the Nixon aide who served time for a Watergate offense before founding the Prison Fellowship in 1976.
Prison Fellowship is the world’s largest outreach program for prisoners, with thousands of volunteers conducting Bible classes, substance abuse treatment and seminars on everything from marriage to anger management.
The policy advocacy arm of Prison Fellowship, Justice Fellowship, is headed by Craig DeRoche, who was once a rising Republican politician and became Speaker of the Michigan House of Representatives at age 33.
A Christian and a hidden alcoholic, DeRoche was an early advocate of the GOP turn toward redemption for crime. Driven to empathy through his own demons, DeRoche embraced the redemption narrative in criminal justice reform, but he couldn’t tell people what drove him.
“My inability to speak truthfully about my own life experience — until I had become sober many years later — prevented me from serving well,” DeRoche said.
In his efforts to reshape public policy, DeRoche reaches out to faith congregations, reminding them that the tiny handful of non-negotiable mandates laid out explicitly in the Christian canon are to feed the hungry, clothe the naked and visit the prisoner.
"We don’t try to change people’s values," DeRoche said. "We help them live to the values they already hold, to express and live up to them."
DeRoche's predecessor at Justice Fellowship was a former California legislator named Pat Nolan, whose political career ended abruptly in 1994 with an FBI sting centered on illegal campaign contributions. Nolan served 25 months in prison and, after his release, Chuck Colson brought him in to head Justice Fellowship. Since 2014, Nolan has served as director of the American Conservative Union Foundation’s Center for Criminal Justice Reform.
As a politician, Nolan was no stranger to the tough-crime rhetoric. But since leaving prison, he's come to hold a biblical view of fallen human nature that is both more skeptical of law enforcement and more embracing of offenders. He sees criminals as redeemable, and he also sees law enforcement and prosecutors as prone to abuse of power — with both perspectives rooted in his Christian view of fallen but redeemable humanity.
Nolan thus merges a small-government conservative skepticism of government with his Christian faith in redemption. He argues that conservatives should be leery of any power invested in government: you can agree with public safety motives, but don't write a blank check.
"A conservative is a liberal who's been mugged," Nolan said, citing a common aphorism, "but a liberal is a conservative who’s been indicted."