After the Midterms


Criminal justice policies will shift at federal and state levels after Republican gains in Congress and state capitals–but not as sharply as you might think

Less federal aid and new leadership. That's the essential message to Washington following the congressional midterm election–and it applies to criminal justice issues just as strongly as it does to other items on the nation's agenda. Moreover, the replacement of many Democratic governors by Republicans may bring a few policy shifts on the state level, most of them focusing on spending scarce tax dollars more efficiently.

Yet the Republican surge of 2010 promises less of a sharp change in criminal justice policies than the political party reversal of 1994. That year, crime was a much bigger issue. A Democratic-led Congress had just passed a massive anti-crime bill that Republicans were eager to dismantle because they believed it included too much spending on unproved prevention programs..

This year, “Tea Party” Republicans and others who toppled incumbents made profligate federal spending a key target in their campaigns. This could bode ill for many programs popular among criminal justice officials, such as police hiring under the Community Oriented Policing Services (COPS) program and the Second Chance Act for prisoner re-entry. These programs weren't widely mentioned by name by candidates, but Vice President Joe Biden predicted funding challenges for COPS, which was started by former President Bill Clinton and is disliked by many Republicans.

It's too soon to predict how any spending cuts will play out in detail. The lame-duck Congress still must convene before year's end to decide how the federal government should operate during its current fiscal year. Republicans could take the opportunity to signal how they will come down on what they consider unnecessary outlays.

A major question is whether conservative cost-cutting will mesh with liberal hopes to reduce the reliance on incarceration that has more than two million in prison and jail at any time. That may happen only to the extent that criminal justice officials are careful in screening inmates who may be freed before their usual release dates and do not resort to massive sentence cuts.

One thing that's certain: there will be new key players in both houses of of Congress. In the House, conservative Republican Lamar Smith of Texas is likely to replace liberal Democrat John Conyers of Michigan as chairman of the Judiciary Committee. A similar shift is likely on the crime subcommittee, where Democrat Bobby Scott of Virginia will yield the gavel either to Louie Gohmert of Texas or some other Republican, possibly Ted Poe of Texas.

Scott's passion has been crime prevention, as embodied in his Youth Promise Act that didn't make it through the legislative gauntlet. Smith and Gohmert's agendas are less clear, but Smith opposed the recent compromise on reducing the gap between federal crack and powder cocaine sentences, and Gohmert has taken swipes at the Second Chance Act. In a post-election statement from Smith reported by Legal Times listing his priorities, the only criminal justice items he mentioned were child pornography and child sexual exploitation.

Michael Volkov, a former Republican House Judiciary staffer now practicing law with the firm Mayer Brown, believes that once federal budgets are sorted out, “Republicans will divert more money to law enforcement, such as anti-drug task forces, and less to things like drug treatment, indigent defense and prisoner re-entry.”

An important new actor will be Representative Frank Wolf (R-Va.), likely head of the committee controlling the Justice Department's budget. Wolf has focused on issues that include gangs, human trafficking, and the Prison Rape Elimination Act. Current committee chair Alan Mollohan (D-W.Va.) was defeated for re-election in a primary.

The Democrats retained control of the Senate but expect changes there, too. Republican-turned-Democrat Arlen Specter of Pennsylvania headed the Senate Judiciary Committee's crime subcommittee but he was defeated in a primary election.

It's not clear who will succeed him, but one possibility is former subcommittee chair Dick Durbin of Illinois, who has a solid record of interest in criminal justice issues. Durbin may be occupied with Senate leadership duties, however, so two Minnesotans on the Democratic side might take more active roles: Amy Klobuchar, a former prosecutor, and Al Franken, who has worked on legislation to address DNA-evidence backlogs in rape cases.

Sen. Chuck Grassley (R-Iowa), who will become the new top Republican on the Judiciary Committee, replacing Jeff Sessions of Alabama, could be a surprise player . Insiders say that Grassley has shown considerable interest in Justice Department anticrime programs and is expected to support those that have proved effective.

Across-the-board cuts at DOJ?

However the political landscape shifts, no one expects another year like 2009, when an extra infusion of $4 billion was pumped into criminal justice programs, including COPS hiring, under Obama's American Recovery and Reinvestment Act. Instead, even regular appropriations are endangered, with the possibility of across-the-board cuts in Justice Department programs and government-wide. A common remedy in times of budget stress is to instruct all cabinet departments to cut their spending by several percentage points. Because most of the Justice Department budget goes to personnel, anti-crime grants tend to suffer under this scenario.

Capitol Hill watchers say that a key player will be Sen. Richard Shelby (R-Al.), top Republican on the committee that oversees Justice Department spending. Shelby would be in a powerful position to mediate any differences between the White House, Senate Democrats, and House Republicans on justice issues.

Most political observers believe that any federal criminal justice proposal that will require new spending would face almost insurmountable odds. This could include the long-pending proposal by Senator Jim Webb (D-Va.) to set up a national commission to study national criminal justice problems. Established programs do stand a chance, such as the Justice for All extension proposed by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in late September to help states examine DNA evidence in crimes.

Non-money issues could get attention, too. One area of agreement between House Democrat Scott and Republican Gohmert is on “over-criminalization”–the idea that Congress has extended the reach of federal criminal law too far. Leaders of the two parties could decide to roll back laws in some areas.

State capitals also are beset with budget woes, so it's fair to speculate that criminal-justice agencies will be on the chopping block, especially where more-conservative Republicans replace Democrats. In many elections, crime wasn't a big issue, so no one knows what to expect. In Michigan, for example, Republican entrepreneur Rick Snyder assumes the helm from Democrat Jennifer Granholm, who already has embarked on a prison-closing program in a weak economy. In Pennsylvania, Republican Tom Corbett, who replaces Democrat Ed Rendell, has been critical of at least one sentencing-law reform and may take a more hardline approach.

It's presumptuous to assume that there will be retrenchments nationwide along party lines.

Consider Kansas, which had a model “justice reinvestment” program of reducing prison building plans and spending money instead on social services for former inmates. It would be easy to assume that Gov.-elect Sam Brownback, a conservative Republican U.S. Senator, may take a different view from predecessor Democrat Kathleen Sibelius, now President Barack Obama's Health and Human Services Secretary.

Actually, Brownback was a major sponsor of the federal Second Chance Act and is very familiar with prisoner re-entry issues, so he isn't expected to target criminal justice for cutbacks.

George Camp, who directs the Association of State Correctional Administrators, does not expect a wholesale replacement of his members by the influx of new governors. Rather, he believes that new Republican chief executives will respect incumbent corrections' directors “emphasis on being frugal and starting cost-efficient programs.”

Two states with Democratic governors may be the most interesting to track. In Illinois, Gov. Pat Quinn ran into severe criticism over releasing some prisoners shortly before they were to finish their terms; his corrections director resigned during the gubernatorial campaign. Now that Quinn has been barely re-elected, he will be faced with decisions what do about his state's crowded prisons.

In California, state Attorney General Jerry Brown, who will succeed Arnold Schwarzenegger in the governor's mansion, must decide how to handle big pending budget cuts to the sprawling prison system. In a case bound for the U.S. Supreme Court, a federal judicial panel has ordered a massive prison population cut in the state because of substandard health care provided to many inmates. How Brown tackles this could set either a good or bad example for prison reformers in other states.

From Washington to state capitals, the big story of 2011 in criminal justice may be how politicians of all stripes cope with lean times.

Ted Gest is president of Criminal Justice Journalists

Photo by Wally Gobetz via Flickr.

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