Public Safety Is ‘the End Result We’re Trying to Achieve’

A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed

This ongoing, occasional series features interviews with a variety of influential leaders who discuss how they became involved in criminal justice reform, how their views have evolved—sometimes in unexpected ways—and what’s needed to sustain progress.

Mike Lee (R-UT) was elected to the U.S. Senate in 2010. He is among a bipartisan group of lawmakers pushing to reform the federal criminal justice system.

Q: How would you describe your position on prison and criminal justice in the past?

A: Like most lawyers, whether they’re prosecutors or not, I just believed the law was the law. That’s what we were taught, and as prosecutors we were instructed to always follow the law. I didn’t really see faults in our sentencing system until I personally witnessed some applications of the law that were leading to exorbitant sentences. In a just system, the punishment must fit the crime, and there are far too many instances where that isn’t happening in our country. That’s what our sentencing reform efforts in Washington are all about.

Q: What were your early views on the impact of prison on crime?

A: Our country spent a whole generation adopting tough-on-crime policies that helped make communities around the country safer. Incarceration is an important part of punishment within our system, and it will always be necessary. But many of our criminal justice laws are now out of date, counterproductive, and unfair. Laws that once were essential to community safety have become instrumental in community breakdown. Today, we have far too many reformed offenders languishing behind bars, and they and their families and neighborhoods are suffering the consequences.

Q: Can you describe your views about prison and criminal justice today?

A: Since 1980, our federal prison population has increased more than 800 percent—and that’s a pretty big increase. There are several factors that contributed. One is the massive expansion of our federal criminal code to the point where no one even knows how many laws are on the books. Another is the increased reliance on mandatory minimum penalties, some of which are excessive.

Some people support criminal justice reform because they think it’s an issue of saving money, and that is a component. But for me the most compelling arguments are not the financial costs but the human costs—what our over-reliance on incarceration does to families when fathers and sons or uncles and nephews and brothers are sent away to prison for years or sometimes decades. That has tremendous consequences, and that’s what motivates me.

Q: Was there a particular moment when you realized that things had to change?

A: I first began to appreciate the magnitude of this problem in 2004, when I was working in the U.S. Attorney’s Office in Utah. In some cases, I witnessed judges forced by federal law to impose punishments that did not fit the crime—first-time offenders sometimes sent away for longer periods than murderers and rapists, for example. But one case in particular framed the issue for me and helped me realize that some of these minimum mandatory penalties needed to be revisited.

The case involved a young man in his mid-20s. He had two young children and was caught selling very small user quantities of marijuana to a confidential informant on three occasions over a 72-hour period. He had a gun at the time, but he didn’t brandish the weapon or discharge it. And based on those facts and the way he was charged, he received a minimum mandatory sentence of 55 years in prison.

One of the things that got my attention on the case is that the judge took the unusual step of issuing an opinion disagreeing with the sentence he imposed. He said he viewed it as excessive, but that “my hands are tied under the law and I have no discretion.” He also said this was a problem that only Congress could fix. And those words have been echoing around in my head ever since.

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that judge had said, and I realized that I had become one of the people who could help fix this problem. So that’s what I decided to do. I knew it wouldn’t necessarily be easy, but I also knew it was important. So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation. It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate. And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness. Harshness itself isn’t an end objective. We want to be smart in the way we punish crime. We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?” And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property. There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just. So for me, this is a natural outgrowth of my conservative approach to lawmaking.

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