The right end of the political spectrum historically has favored getting tough on crime and increasing criminal penalties as a solution to rising crime rates. But to be “right on crime” nowadays means something else entirely. The lack of measurable results in straightening out the lives of wrongdoers and the huge expense of incarceration both have produced a new ethic focused on data, common sense and a much better cost-benefit ratio for government corrections policy.
Fiscal questions about how and when incarceration is appropriate have generated significant new interest, as well as experimentation by some states that are trying to find the criminal-justice formula that makes the most sense. Texas, Georgia, Oklahoma, Kentucky and many other states have in recent years changed laws, rationalized systems, diminished recidivism and saved billions. The phrase heard several times from presenters at this year’s Conservative Political Action Conference was: “We want to imprison the people we are afraid of, not the people we are mad at.”
FreedomWorks points out that the U.S. Constitution defined just three federal crimes – piracy, treason and counterfeiting. In 1870, Congress added a baker’s dozen more federal crimes, including murder and manslaughter, larceny and perjury. There are now about 5,000 federal crimes, and according to some estimates, around 400,000 federal regulations that can be enforced criminally. No one is quite sure exactly how many.
For the last few years, concern has been focused on the expanding number of new crimes that executive agency regulatory processes have created. In contrast to the legal doctrine of mens rea, which holds that intent is always an element of a crime, there’s no need to prove intent for many of these infractions. Author Harvey Silvergate claims Americans today unknowingly commit an average of three felonies a day.
This year’s CPAC featured a number of both main-stage appearances and expert breakout panels composed of conservatives intent on reformulating aspects of the nation’s criminal-justice system. One of the most interesting issues was highlighted by Stephen Mills, a retired Army military policeman who now serves as chief of police in Lindsay, Oklahoma. Mills also happened to be one of the law-enforcement first responders to the 2009 terrorist attack on Fort Hood.
Mills described how, after retiring from 25 years of active military duty, he became a rancher and hired some help to run his cattle operation. One of his ranch hands was out one day and stole a big roll of copper wire. When the ranch hand was apprehended, Chief Mills’ pickup truck was confiscated “an instrumentality of a crime.” He couldn’t get it back, because he couldn’t prove he knew nothing about the theft.
This is the process of civil asset forfeiture. Law enforcement considers it a valuable tool in the fight against crime, particularly in drug-related cases. The prototypical case proponents of the practice will usually cite is the traffic stop that uncovers thousands of dollars in cash from drug deals. Unfortunately, there seem to be a lot of cases more like the one Mills faced. Many of these forfeiture laws now are under review – for instance, to compel confiscated items be returned where the owners are never charged with a crime. Several states already have enacted asset-forfeiture reform and many more are currently considering it.
Another reform widely enacted by states in recent years is to prohibit government employers from asking about criminal convictions on job applications. The most important thing to reintegrate ex-convicts into a productive life is a job. Prospective employees likely would ultimately have to explain any convictions before they could be hired by a government agency, but this would cut down on automatic rejections at the application level.
Another panel highlighted stories about political prosecutions that ultimately were overturned, but not before they had ruined careers, families and finances. It sparked a lot of passion, which is understandable when it comes to outcomes that clearly seem unjust. But the most important thing about the new criminal justice reform agenda is how practical and data-driven reforms have proven out when tested against real world challenges.