CLEVELAND (CN) – While some in the GOP continue to obsess over what Donald Trump’s ascent means for the future of the party, some provisions in its 2016 platform signal another shift into the mainstream of criminal justice reform.
Long the party of “tough on crime” stances, the GOP adopted a platform Monday embracing the reduction of mandatory minimum sentences for non-violent crimes, a position that brings the party in line with the majority of Americans about how to punish people convicted of less serious offenses.
“I think it is a change,” Molly Gill, director of federal legislative affairs for Families Against Mandatory Minimums said. “I think it is a move that’s reflecting where a lot of Republicans have ended up where the country has ended up, frankly which has been a major national recognition, bipartisan recognition, that these mandatory sentencing laws, particularly for drug offenders and non-violent offenders and low-level offenders have produced some unintended consequences and have cost taxpayers a fabulous amount of money without making them safer.”
The platform does call mandatory minimum sentencing “an important tool” for keeping dangerous criminals off the streets, but allows for reforms targeted at “nonviolent offenders and persons with drug, alcohol or mental health issues.”
“I think it really signals that the Republican party, and conservatives in general, can be tough where they need to be tough but they also have the ability to look at things with a very nuanced eye towards making sure that we get the best outcomes,” said Derek Cohen, deputy director for Right on Crime.
That is in line with new attempts to reform the criminal justice system, including one that has been stalled in the Senate , despite significant bipartisan backing.
That bill, sponsored by Senate Judiciary Chairman Chuck Grassley, R-Iowa, would reduce penalties for non-violent drug offenders and has 16 Republican co-sponsors.
Interesting to Ames Grawert, counsel with the Brenan Center for Justice at the NYU School of Law, is the shift in the way Republicans have started approaching criminal justice reform. While conservatives in the past justified the need for new approaches to crime by arguing mass incarceration is a drain on taxpayers, Grawert has noticed more Republicans looking at the issue from a moral perspective.
“I think in some case it’s people waking up to an economic reality that we can’t afford public safety measures that just don’t work anymore, but in the other it’s a growing consensus on both sides of the aisle that mass incarceration is simply immoral,” Grawert said. “That’s really heartening.”
The wording in the 2016 party platform more fully embraces the move away from mandatory minimums than the 2012 party platform did.
In 2012, the platform called limits on judicial discretion helpful to “preserve public safety” and embraced mandatory prison sentencing for “gang crimes, violent or sexual offenses against children, repeat drug dealers, rape, robbery and murder” without explicitly mentioning areas where they could be rolled back
While stronger than the provisions in the 2012 version, the 2016 platform does not go so far as to call for the out and out elimination of mandatory minimum sentences. Republicans still cast these as important tools to prevent criminals from getting out of prison too early and committing more crimes in communities.
“What mandatory minimums do is they provide you an added protection from that tragedy happening again and again and again because they say look, if you commit this specific crime than you’re going to be doing this specific amount of time,” said Jonathan Gardner, a prosecutor and New Mexico delegate to the Republican Platform Committee. “And then you don’t have the possibility if you will for the judicial system to in a sense make a mistake and determine that someone is less of a risk to the community than they actually are.”
By being open to a reduction of mandatory minimums for certain offenders, the Republican party is committing to its larger theme of fighting back against the over-criminalization and over-federalization in the criminal code, Cohen said.
The platform laments the more than 4,500 federal criminal offense and 300,000 regulations that carry criminal penalties, calling them overreaches of a bloated federal government.
“The over-federalization of criminal justice is one of the many ways in which the government in Washington has intruded beyond its proper jurisdiction,” the platform reads.
As Cohen put it, there should be no need for a federal carjacking law when all 50 states already have a law against carjacking.
While the reduction of mandatory minimum sentences is generally supported in the criminal justice reform community, some of the other provisions in the Republican party platform are not.
For example, the platform embraces mens rea provisions, which require prosecutors to prove a person knew they were doing something wrong when they committed a crime.
To conservatives, mens rea provisions are important hedges against the growth of the federal criminal code.
“Mes rea is important to make sure that when you’re prosecuting people for crimes you’re actually prosecuting criminals,” Gardner, and assistant district attorney in Albuquerque, said.
But some say mens rea is hard to prove and the threat of attaching such a provision to Grassley’s sentencing reform bill has been a concern for some in Washington.
Another provision that gave some experts pause was the inclusion of a call for a mandatory minimum sentence for “all assaults involving serious injury to law enforcement officers.”
Ashley Nellis, a senior research analyst at the Sentencing Project, warned that this provision, if not written correctly, could include such minor offenses as scratching a police officer or other acts most people would not immediately associate with assault. Such a law could have negative consequences and goes against portions of the platform that embrace reducing certain types of mandatory minimum sentences, she said.
“What that could do if it was to become law would be to bring in people into the system who certainly don’t need to add a federal conviction onto whatever trouble they’ve already gotten themselves into and would most certainly have a racial impact,” Nellis said.
She also lamented the party’s embrace of the death penalty in the platform, despite faltering public support and increasing concern over its effective administration.
“I think it again really does highlight how out of touch the GOP platform is with what we know about criminal justice and what we know about punishment and its effectiveness,” Nellis said.
While Grawert expressed concerns of his own about the platform, he said he is generally heartened by how the party has moved towards more widely accepted views on criminal justice.
“I think it’s a sign that Republicans actually take this seriously and that whatever bipartisan momentum we had going into the election for criminal justice reform won’t be killed by the election,” Grawert said.
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