An earlier version of this story misidentified Marc Mauer in a photo. The current photo is Marc Mauer.
It was a surprise dinner invitation that made Marc Mauer of the Sentencing Project realize he had new allies in his effort to end mandatory minimum prison sentences.
After years of working with liberal groups like the NAACP and Human Rights Watch, Mauer found himself dining at a conservative think tank with heavyweights of the political right, including former GOP House speaker Newt Gingrich and anti-tax activist Grover Norquist. The discussion topic: the explosion in the U.S. prison population due to federal and state laws requiring minimum sentences for even non-violent offenders.
"We had this three-hour free-flowing discussion about the need to reduce the prison population,'' Mauer said of the 2009 event. "It was striking how much agreement there was there.''
Since mandatory sentencing became widespread in the 1980s and prison populations and costs began to climb, opponents have pointed to its disproportionate impacts on minorities and the poor. The political right is entering the fray from a different angle, calling the current criminal justice system an expensive government program that produces poor results.
Conservative support has given criminal justice reform a powerful bipartisan boost. Since 2010, 13 states have revised sentencing laws, including traditionally red states Arkansas, Kentucky, South Carolina, Louisiana and Georgia. Texas began diverting drug offenders from prisons in 2007 through drug courts, probation and treatment and has cut its incarceration rate 11%.
"Conservatives have long held the cards'' to changing sentencing rules, says Adam Gelb, director of the Pew Charitable Trusts' Public Safety Performance Project, which provides help to states on criminal justice issues. "They had the tough-on-crime credentials … and it's been much easier for them to step out and say 'this isn't working and we have to find a better way.'''
It has also brought together some very odd couples. U.S. Attorney General Eric Holder opposes mandatory minimum sentences for non-violent drug offenders. So does former National Rifle Association president David Keene. Sen. Rand Paul, R-Ky., and Sen. Cory Booker, D-N.J., are among those supporting a measure now pending in the Senate that would reduce mandatory sentences for drug offenses.
"It's the perfect example of odd bedfellows. This is something they agree on,'' says Molly Gill of the non-partisan group Families Against Mandatory Minimums, which set up a booth at the Conservative Political Action Conference this year for the first time. "This is a big government program run amok, if you're a conservative. And if you're liberal this is (a policy that's) hugely flawed in the racial disparities and its impact on the poor.''
Booker, who as mayor of Newark created a prisoner re-entry program that included job training, called it an "exciting convergence in American culture, that you're starting to see people from the right, evangelicals, libertarians and others coming to the same conclusion as many people who are traditionally Democrats. ... It really drives my hope that we can get some real substantive change.''
Conservative support for sentencing reform includes libertarian-leaning Sens. Paul and Mike Lee, R-Utah, the advocacy group Right on Crime, founded by Norquist, and the Justice Fellowship, an offshoot of the prison ministry founded by Chuck Colson, an aide to President Richard Nixon imprisoned in the Watergate break-in.
"We've reached a certain critical mass of conservatives that as we look around we say, 'Hey, this is the conservative position,''' says Pat Nolan of the American Conservative Union. "There are enough of us that we are not outliers.''
Conservative mobilization on criminal justice reform dovetails with Republican Party leadership calls for the party to make more positive policy proposals in addition to opposing Democratic efforts as government overreaching. "We need to spend as much time thinking how we do the stuff government should do intelligently and smartly and less expensively,'' Norquist told the CPAC gathering earlier this month. "It's a more mature conservative movement that says we're ready to start governing.''
There are still those on the right and the left that are skeptical about a sentencing overhaul. Prosecutors' groups oppose it, arguing that tough sentencing laws have worked to reduce crime and also that they provide leverage to get low-level offenders to lead prosecutors to bigger fish. In January, Iowa Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, supported the sentencing reform bill only after successfully adding amendments that would institute new mandatory sentences for sex crimes, domestic violence and terrorism. Sen. Dianne Feinstein, D-Calif., was one of two Judiciary Committee votes against a related criminal justice bill aimed at reducing recidivism.
Sentencing reforms face a challenge in the U.S. House, where the Republican majority may not want to vote in favor of any measure supported by Holder. While having the support of the conservative right provides political cover for both Republicans and Democrats, changing tough sentencing laws can still seem politically perilous.
"We're not quite there yet. We have not seen the last campaign mailer two weeks before an election that accuses an opponent of being soft on crime,'' Gelb says. That kind of political attack -- in which a vote for sentencing reform is cast as a vote for letting criminals out of jail -- "has been a staple of campaigns for decades now, and it's going to be a hard habit to break.''