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Rand Paul is serious about ending mass incarceration

Yes, that is Rand Paul doing "hands up, don't shoot."
Yes, that is Rand Paul doing "hands up, don't shoot."
Chip Somodevilla/Getty

Rand Paul has quickly sanded down some of the unorthodox positions that separated him from most of his Republican colleagues as he heads into campaign season. He's recently proposed increasing defense spending rather than decreasing it, for example, and reversing his earlier support for "judicial activism."

At the same time, there's at least one space where he's strengthened an unorthodox policy position: reducing mass incarceration.

Paul isn't the only Republican senator who's interested in reducing mass incarceration — Sens. Mike Lee and Ted Cruz have also been vocal on the issue. Paul is different in two ways.

First, he's willing to go further than his colleagues are: his bills have suggested everything from expanding welfare to ending mandatory minimum sentences.

What's more, his legislation seems to show different motivations. He has an interest in justice reform that's grounded not just in conservative fears of overregulation and government spending, but in moral opposition to the punitive criminal justice policies of the past few decades.

The Paul doctrine: Expanding welfare for ex-prisoners, ending mandatory minimums, restricting juvenile records

Sens. Cory Booker and Rand Paul at a press conference. Mark Wilson/Getty Images

Paul has worked with Sen. Cory Booker (D-NJ) on justice reforms. (Mark Wilson/Getty)

In recent years Paul has introduced numerous bills that all aim to reduce mass incarceration in some way. They tackle disparate parts of the justice system and, if passed, would mean remarkable change. Of course, because Paul is so far in front of not only his party but Congress on these issues, the bills range from unlikely to extremely unlikely to pass. But it's notable that he's putting legislation out there, not just rhetoric.

  • Reversing overcriminalization. One favorite target of Republicans like Paul is the Lacey Act, which makes it a federal crime to break another country's laws when exporting plants or animals into the United States. Paul has proposed a bill that would turn those offenses into regulatory violations. He's also introduced a bill with Sen. Cory Booker (D-NJ) and Sen. Kirsten Gillibrand (D-NY) that would change the federal "scheduling" restrictions on marijuana — forcing the government to admit it has medical value and protecting medical marijuana dispensaries in states where it's legal.

    Moreover — and unlike many other Republicans — Paul's also made a point of talking about how criminalizing minor offenses disproportionately hurts minority communities. Most famously (and most controversially), he said in 2014 that Eric Garner wouldn't have been killed by a New York police officer if it hadn't been a crime for Garner to sell loose cigarettes.
  • Keeping juvenile records from following people into adulthood. Paul has introduced a bill with Sen. Booker called the REDEEM Act. The bill would largely end solitary confinement of juvenile detainees in federal prison, and would automatically wipe away records for any nonviolent crime committed before the defendant turned 15 (and seal the records of any nonviolent crime committed between 15 and 18).
  • Ending mandatory minimum sentences. Many younger Republicans want to reduce federal mandatory minimum sentences and give judges more flexibility in sentencing. Paul would actually like Congress to go much further: he's proposed a bill in 2013 and 2015 called the Justice Safety Valve Act, which would give judges the option to overrule the mandatory minimum sentence altogether, if they felt it was too long. The bill wouldn't officially get rid of mandatory minimum sentences, but it would give judges the authority to use them or not on a case-by-case basis — which certainly takes the punch out of the "mandatory" part.
  • Restoring voting rights and even welfare to ex-prisoners. Criminal justice advocates are especially concerned about "collateral consequences," or the restrictions placed on people who've been convicted of felonies even after their release from prison. Paul has introduced a bill that would allow people who have been convicted of nonviolent crimes to vote in elections for president and Congress after they're released from prison. There are other members of Congress pushing to restore voting rights, but they're basically all Democrats. And Paul and Booker's REDEEM Act would not only set out a process for ex-prisoners to ask to get their records sealed — which would likely make it much easier for them to get jobs — but would also allow federal low-level drug offenders to get food stamps and welfare benefits.

A core part of Paul's ideology

rand paul bowie state

Paul has made a point of speaking to African-American institutions, such as this speech at historically black Bowie State University — though the spotty attendance might say something about the strategy's effectiveness. (Mandel Ngan/AFP/Getty)

The fact that Rand Paul is willing to introduce a bill that would end up expanding welfare less than a month before he declares he's running for president — while backing away from other controversial positions, like opposition to increased defense spending — shows that he's seriously committed to not just reducing incarceration but trying to undo the damage that mass incarceration has caused a generation of Americans.

Those Americans are disproportionately low-income and disproportionately nonwhite. And while other Republicans, even supporters of criminal justice reform, have often been wary of acknowledging the racial disparities in the system they're trying to fix, Paul has leaned into criminal justice reform as a civil rights issue. He's used it as the centerpiece of speeches to the Urban League last summer (where he described students being arrested for "waiting while black"), and at historically black Bowie State University last month.

This is a political strategy for Paul — but on behalf of his party as much as himself. While many of the candidates and potential candidates for the Republican nomination are putting forward visions of what they want the party to be, Paul is one of the only ones who's explicitly talking about whom he wants the party to include. He's making a concerted effort to get African Americans to take a second look at the Republican Party — through a lot of speeches, to be sure, but also through opening a Republican outreach office in a black neighborhood in Louisville.

But while Paul is more willing to talk about race and criminal justice than his peers, his viewpoint is still a distinctly Republican one. In fact, it's precisely because Paul has been so willing to speak out on these issues that his differences with many African Americans have been so obvious to spot.

His comments about the death of Eric Garner, for example, were harshly criticized by African Americans and liberals, because they thought Paul was being naive or blind about the role of racism. To Paul, it was most important to note that government created the laws justifying New York police harassment of Garner before his death; to his critics, it was most important that police chose to enforce those laws repeatedly against a black man, and ultimately used lethal force to do it. It's that tension, and the distinctiveness of Paul's viewpoint, that makes it clear Paul's position might include some political calculation but has its roots in genuine iconoclasm.

It would be a mistake to think Rand Paul is only supporting criminal justice reform to appeal to black voters — just like it would be a mistake to think Jeb Bush only supports immigration reform to appeal to Latinos. Both of them are definitely thinking about the long-term survival of their party in an increasingly diverse America — and sticking to their guns during a Republican primary. Paul's criminal justice agenda is an assertion that reducing mass incarceration and trying to heal its scars needs to be a Republican priority — both because it will help the party survive, and because it will, in his estimation, encourage the kind of self-reliance Republicans want to see in America.

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