Correcting the record on conservative criminal justice reform
The United States holds less than 5% of the world’s population, but it houses a quarter of the world’s prisoners. For this, critics have given us the unflattering moniker of the “incarceration nation.” And if the U.S. is the incarceration nation, then Mississippi is a strong contender to be its capital, with what is now the second highest incarceration rate in the country.
Mississippi’s prison population comes at a substantial cost. In the last 10 years, the legislature has appropriated over $3.2 billion to the Department of Corrections. Even still, our prison system has been plagued by scandal, lawsuits, and deplorable conditions that culminated in a string of violent deaths and President Trump’s Department of Justice launching an investigation. A similar investigation in Alabama forced our neighbors to invest an additional billion dollars into their prisons.
How we got here is complex. For the last 40 years, the American judicial system has put people in prison for more reasons and for far longer periods of time than elsewhere in the world. Beginning a decade ago, conservative states like Texas, Georgia, and yes, Mississippi, recognized a growing problem with massive disparities in sentencing and huge costs to taxpayers, which include not only the price of incarceration, but also added assistance to the families of prisoners. Subsequent reforms in each state served as models for the federal First Step Act, passed with bipartisan support and signed into law by President Trump.
Many of the state reforms have borne fruit. Take Mississippi’s 2014 reform, HB 585. The bill sailed through the Republican led House with 105 votes, and the then-Lt. Gov. Reeves’ led Senate, 50-0, before being signed by Gov. Bryant. HB 585 made it so that non-violent offenders had to serve at least 25% of their time before being parole eligible, and violent offenders, excluding certain classes of crimes, had to serve at least 50% of their time before they could earn early release.
In the intervening years, HB 585 has, in many ways, worked as intended. Mississippi’s prison population has declined by roughly 10%. Annual appropriations to MDOC have declined by nearly $30 million, some attributable to decline in prison population, and some to the tightening of purse strings.
At the time HB 585 passed, there were dire warnings from opposition groups that it would jeopardize public safety. But crime rates, which peaked in the mid-’90s, have continued on a downward trajectory since the bill became law. Between 2014-2018, Mississippi experienced a 16% decline in violent crime, a 17% decline in property crime, a 34% decline in murder, and a 33% decline in robberies.
For all the progress made under HB 585, Mississippi continues to fall further behind other states in implementing “smart on crime” reforms. Put simply, other states are making reforms faster and more aggressively. One of the biggest problems in Mississippi is confusion created by a patchwork of changes to the law that apply differently based on when a person was convicted.
For example, a person convicted of most violent crimes between 1977 and 1995 is eligible for early release after 10 years served. A person convicted of that same crime between 1995 and 2014 is not eligible for parole at all. A person convicted after 2014 could be eligible for early release after 50% of time served. Under the current framework, three different people, convicted of the same crime in three different eras, would face drastically different release eligibility, wholly disconnected from the severity of their crimes or their conduct and rehabilitation while in custody.
This year, the legislature sought to proactively address the prison crisis in Mississippi by clarifying the application of HB 585 and making Mississippi’s parole eligibility standards uniform. It started with hearings that included testimony from MDOC Commissioner Burl Cain, as well as many other stakeholders, that these reforms were necessary. What followed was SB 2123, the Correctional Safety and Rehabilitation Act. SB 2123 was conservative legislation that was smart on crime and soft on taxpayers.
Consistent with HB 585, it would have ensured that non-violent offenders serve at least 25% of their time and violent offenders serve at least 50% of their time before becoming parole eligible. SB 2123 would have applied these standards consistently to all prisoners, not just those convicted after 2014. It excluded the most serious offenses from eligibility and provided a single path of review through a parole board that is accountable to the Governor.
The bill was a modest step. It was supported by conservative legislators, like former prosecutor and current Republican Sen. Brice Wiggins, and conservative organizations, including the American Conservative Union, Right on Crime, Americans for Prosperity, the Mississippi Center for Public Policy, and Empower Mississippi. It went through round after round of voting with little vocal opposition.
At the eleventh hour, the same voices that opposed HB 585 began beating familiar drums. They falsely claimed that SB 2123 would eliminate protections that prevent parole for habitual offenders and drug traffickers. The bill explicitly included exclusions to parole eligibility for these classes of offenders.
They falsely implied that the worst of the worst would be set free to pillage and plunder. The bill excludes from parole eligibility capital murder, sex offenders, and those sentenced to life without possibility of parole. The very point of reform efforts is to allow states to stay laser focused on keeping real threats behind bars and providing second chances to those who pose little to no threat.
They falsely suggested the bill would result in automatic release of prisoners. Parole eligibility is not the same thing as automatic release. A parole eligible offender still must go through an intensive review that includes the opportunity for victims, prison officials, and others to object.
They made the specious claim that the bill was aligned with progressive efforts to defund the police. This is patently absurd.
Unfortunately, these last-minute scare tactics worked, resulting in Gov. Reeves vetoing a good piece of legislation. We now find ourselves in the unenviable position of having done nothing legislatively to address a prison crisis under investigation by the Department of Justice – a Department of Justice that could find itself under the watch of Joe Biden before the legislature has a chance at a redo.
Opponents of current reform efforts need to understand that inaction is not a strategy and come to the table with actual solutions. There’s still time. Stakeholders from MDOC, the parole board, prosecutors, law enforcement, public defenders and justice system experts should meet with the governor and legislative leaders to iron out a plan that can be put before the legislature in a special session.
This column appeared in the Daily Journal on July 17, 2020.