This commentary originally appeared in the Washington Examiner on May 24, 2016.


Passing conservative criminal justice reform, like the types of reforms that have proven successful in Texas, South Carolina, Georgia, and a number of other red states, could be a major legislative victory for conservatives on the Hill. But if you've heard the recent chatter in Washington you might have been confused how this has become a story about immigration. Immigration is an important issue, but let's avoid any sleight-of-hand and instead look to the states that have already made great strides in applying conservative principles to their criminal justice systems.

Criminal justice reform at the state level is one of the major conservative policy accomplishments of the last decade. In these states, reformers have seen their states' crime and incarceration rates plummet.

Texas has led the way by finding alternatives to incarceration and recognizing that longer sentences for low level offenders do not improve public safety. In fact, research shows that long sentences can make an individual more likely to commit another crime once released from prison. Texas employed successful programming to address the risks and needs of the incarcerated, heightening their likelihood of succeeding outside the walls. Using these principles, Texas lowered its incarceration rate and most importantly, its crime rate, to its lowest since 1968. As an added bonus, these reforms have saved taxpayers around $3 billion.

Back in Washington, the conversation for some revolves around immigration. For example, Daniel Horowitz at Conservative Review stated that since 84 percent of those serving time for simple drug possession are Hispanic, illegal immigration is the root of this problem. He calls this proof that illegal aliens are the "800 pound gorilla" in the conversation.


Others have echoed this sentiment, warning that a large, disproportionate number of convicted illegal aliens will be released back onto American streets if a criminal justice reform measure passes. But here is the reality: There is nothing in any criminal justice reform legislation under active consideration in Congress that would touch immigration laws at all. The problems with our immigration system are no small matter, but to conflate these issues clouds both in a way not constructive to the conservative movement.

The law requires that an illegal immigrant convicted of a controlled substance offense under state or federal law, except for possession under 30 grams of marijuana, must be detained and is not eligible for release until his or her deportation proceedings are complete. Additionally, the attorney general must provide for expedited deportation proceedings for aliens convicted of "aggravated felonies," which includes all felonies under the Controlled Substance Act; the vast majority of the type of offense afforded relief under the bill. Under this provision, aggravated felons are "conclusively presumed" to be deportable.

Unfortunately, the Obama administration has not consistently enforced these detainers, so this is a valid concern. However, it is not a reason to oppose good, conservative policy. The same problems that exist today when a criminal illegal immigrant is released would be the same problems following the passage of a criminal justice bill. Congress should continue to aggressively pursue its options to force the administration to apply the immigration laws as written.

Criminal justice reform is a separate issue. Conservatives have an opportunity to turn the flawed federal system into one that more closely resembles conservative states where public safety is a multi-generational high point.

Conservatives see the world the way it is, following facts and evidence to make sound policy decisions. In this case, the facts and evidence point to why criminal justice reform will succeed at the federal level. The federal government is overdue in taking a step forward for a system that is gravely lagging behind the states and the success they have seen with right-sizing their criminal justice system.

Joe Luppino-Esposito and Greg Glod are Policy Analysts for Right on Crime and the Center for Effective Justice at the Texas Public Policy Foundation.