It Isn’t Conservative To Rush Criminal Justice Reform

It Isn’t Conservative To Rush Criminal Justice Reform

We should get better data than that used by leftist groups and talk policy specifics before we spring for massive changes to federal criminal law.
Sean Kennedy
By

A conservative, said its father in modern America, Russell Kirk, is one who “endeavors to conserve the best in our traditions and our institutions, reconciling that best with necessary reform from time to time.” Thus, when Rachel Lu appeals to “conservatives” in her latest argument for “criminal justice reform,” she leans heavily on the “necessary reform.”

The problem is that even Kirk’s definition fails to account for the second pillar of conservativism: skepticism in the face of liberal innovation (that is, the new for the sake of new). Reform or change in this case can be embraced but only when necessary and when change is demonstrably an improvement.

To work backwards from Lu’s conclusion to her arguments is useful in unpacking her flawed conceits. The broad first principle Lu concludes with is deeply conservative: “As lovers of order, conservatives may appreciate the cognitive simplicity of trying to lock away all the bad guys. As lovers of liberty, though, we should prefer that people be free if they possibly can.”

Would that it were that simple. The call for both order (and inherently justice) and liberty is laudable, but Lu reasons her way there by eliding over the details her political opponents (including myself) cite, misconstruing their arguments in the process.

I’m Attacking Real Arguments, Not Strawmen

The two separate but often conflated proposals that Lu calls “criminal justice reform” are distinct. One is the state-level efforts advocated and advanced by Right on Crime and Koch brothers’ umbrella groups as well as a myriad of left-wing organizations, including the American Civil Liberties Union and George Soros’ front groups (i.e. the Open Society Foundation). The second is the federal Sentencing Reform and Corrections Act of 2015, co-sponsored by senators Mike Lee, Richard Durbin, Cory Booker, and John Cornyn, among others.

It is the latter which my article for RealClearPolicy last month concerns and what Vikrant Reddy of the Koch Institute and myself engaged over in National Review.

First, Lu attacks my RCP article by arguing, without quoting me directly, that I use “strawmen” to advance an argument that Lee and federal reformers are invoking myths. Yet I specifically quote individuals and organizations that have explicitly invoked the myths I responded to (i.e., The White House Council of Economic Advisors, Sen. Bernie Sanders, and President Obama).

Lu doesn’t quote from my original op-ed or even acknowledge the response to Reddy I offered on May 20 in National Review. Moreover, she suggests Reddy actually criticizes my “myths” as not factual when in reality Reddy writes that my piece “expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right.”

So there are no strawmen in my arguments, but Reddy and Lu do suggest I am distracting from the problem of mass incarceration—with, in Lu’s word’s, “red herrings.” Again, both of my articles address the Senate’s sentencing reform bill specifically, which neither Reddy nor Lu actually defend in name or substance. Instead, they both simply repeat the need for “criminal justice reform,” an umbrella term so broad that anyone can project almost anything onto it, rendering it meaningless.

Our Incarceration Rate Tracks the Crime Rate

Furthermore, Lu zeroes in on my rejection of the myth that the United States is “the world’s largest jailer” in absolute or relative terms. But again, she simply attacks the example I use of statistical sleight of hand by, you guessed it, information from the White House and a Soros-backed group that mislead the public about the nature of foreign incarceration statistics. North Korea’s prison population is an unknown, and China’s is almost certainly doctored, so it’s reasonable to conclude that data set used to compare them with the United States is useless.

In fairness to Reddy (on whom Lu seems to rely), he acknowledges that “these figures are hard to trust, and so comparisons with these countries are of limited value.” If Lu had closely read either of the pieces I wrote, she would see that I note clearly:

[W]here there is genuine disparity in the incarceration rate between the U.S. and other countries around the world, the most likely reason is two-fold: the U.S. is more violent than most other developed nations, and it possesses a well-functioning and honest criminal justice system.

And:

The real reason the U.S. has a mammoth prison-industrial complex is that we have a massive crime-control problem. The U.S. comes in above most other developed nations on almost every violent-crime metric (murder, rape, etc.) — above Reddy’s example of England and Wales, let alone Japan. We lock up more bad guys because we have more of them, for various and myriad reasons.

So Lu (and Reddy) are left with the argument that our incarceration rate is simply “too high” because it feels too high.

Next comes the most troubling problem with any argument for “criminal justice reform” Lu advances, saying that “[conservative reformers are] scrutinizing penal codes, analyzing our ever-growing wealth of data, and testing ideas for how to make the system more efficient, functional, and fair. Some have been on this project for many years now, pursuing reform for fundamentally conservative reasons.”

Here, Lu allows readers to trust our elected leaders, something very un-conservative indeed, without actually examining the data or floating the specific ideas being considered (that she doesn’t cite). I’m all for a “more efficient, functional, and fair” criminal justice system, but that is not what is on offer federally. I remain skeptical and would like to be convinced that the benefits promised will actually materialize and not be outweighed by the harms incurred. I suspect I’ll be waiting a while.

Until then, I’ll be happily standing athwart (criminal justice reform) history, yelling stop!

Sean Kennedy is a writer based in Washington DC. Previously, he was a U.S. Senate aide, television producer, and a fellow at public policy think tanks.

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