America’s prison population is currently too big.
That’s one of the few areas on which leaders and policymakers from both parties seem able to agree these days – perhaps one reason that criminal-justice reform is getting so much attention.
Several bipartisan bills designed to reduce mass incarceration have been gaining momentum in Congress, and sentencing reform has gotten support from an odd coalition of bedfellows, including the conservative Koch brothers, GOP presidential candidates like Sens. Ted Cruz of Texas and Rand Paul of Kentucky, the the American Civil Liberties Union, the National Association for the Advancement of Colored People, and liberal leaders in Congress. This week, it's President Obama’s turn to call for reform.
On Monday, Mr. Obama commuted the sentences of 46 nonviolent drug offenders, bringing his total number of commutations to 89 – more than any president since Lyndon B. Johnson, and more than the past four presidents combined. (A commutation shortens the sentence but leaves the conviction in place.)
On Tuesday, he laid out his proposals for criminal-justice reform in a speech in Philadelphia. And on Thursday, he is set to become the first sitting president to visit a federal prison.
“There are a lot of folks who belong in prison ... but over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, and that is the real reason our prison population is so high,” Obama said in his speech Tuesday to the NAACP conference.
“If you’re a low-level drug dealer or you violate parole, you owe some debt to society ... but you don’t owe 20 years, you don’t owe a life sentence. That’s disproportionate to the price that should be paid," he added.
The reasons for such bipartisan support around what used to be a polarizing topic are varied. Some proponents of reform talk about the fiscal issues and increasing budget drain of incarcerating so many people unnecessarily. Others focus on the racial biases of sentencing, the unfairness of long sentences for nonviolent crimes, or policies that make reintegration for released prisoners difficult and encourage recidivism.
But the overarching reason is a burgeoning prison population that has exploded under the tough-on-crime laws of the 1980s and ’90s.
The United States has about 5 percent of the world’s population and about 25 percent of the world’s prisoners, and its prison population has more than quadrupled since 1980. One in 100 Americans is currently behind bars.
Since 1980, the federal prison population has grown from less than 25,000 to more than 214,000, spurred largely by tough mandatory minimum sentences for drug crimes.
The rise in prison populations has been a drain on state budgets at the same time that the violent crime that spurred much of the tough-on-crime rhetoric and laws has fallen. And research has shown little correlation between crime rates and tough sentences, especially for nonviolent offenses. Meanwhile, a number of states – including California, Texas, New York, and New Jersey – have managed to significantly reduce their incarceration rates or prison populations at the same time that they reduce crime.
In the 1980s and ’90s, when three-strikes laws and tough mandatory minimum sentencing requirements were passed, “we didn’t have enough evidence of what would work,” says Inimai Chettiar, director of the justice program at New York University School of Law’s Brennan Center for Justice. “We did a lot of things we now know are arbitrary and not effective, and as a major side effect to that, we now have mass incarceration.”
In his speech Tuesday, Obama emphasized many of the injustices, particularly racial injustices, of the current system, and he laid out proposals focused on the “community, courtroom, and cellblock."
To prevent crime, he highlighted programs – from good pre-K programs and changed school discipline procedures to community policing and juvenile-justice reforms that focus on helping juvenile offenders rather than treating them as future criminals.
Obama also called to lower – or eliminate entirely – mandatory minimum sentences for nonviolent drug crimes; to give judges more discretion around nonviolent crimes; to push prosecutors to use their discretion to seek the best punishment rather than the longest punishment; and to invest in alternatives to prison, including treatment programs.
Obama also emphasized that the vast majority of today’s prisoners will one day be released, and he called for a renewed investment in programs and policies to help those prisoners reenter society productively and to remove barriers to employment and voting.
None of the fixes Obama suggested are new, and some have already been enacted by states leading the way on criminal-justice reform. But what is perhaps new – a fact that Obama highlighted Tuesday – is the degree to which the issue is gaining momentum among leaders on both sides of the aisle.
In the House, the most far-reaching bill is the SAFE Justice Act, introduced in June by Rep. Jim Sensenbrenner, a Republican from Wisconsin, and Rep. Bobby Scott, a Democrat from Virginia. The bill addresses mandatory minimums and includes a host of other elements to help reduce recidivism, gain early release for targeted inmates, and prioritize prison space for violent, high-risk criminals.
In the Senate, the Smarter Sentencing Act – introduced by Sen. Richard Durbin (D) of Illinois and Sen. Mike Lee (R) of Utah – would reduce mandatory minimums and give federal judges more discretion in sentencing. It would also retroactively change the sentences of those convicted of crack cocaine offenses before the guidelines for crack were changed in 2010.
“There are still about 7,000 people in federal prison serving longer sentences than they otherwise would,” says Jeremy Haile, federal advocacy counsel at The Sentencing Project in Washington, which support criminal-justice reform.
Mr. Haile, like Ms. Chettiar, says there’s been a sea change in how politicians view sentencing laws, from the days when both Republicans and Democrats were eager to be seen as tough on crime to today’s emphasis on “smart on crime” laws and prosecutors.
“Three years ago, the term ‘mass incarceration’ was controversial,” Haile says. “Today, Sensenbrenner used it [in a House hearing] as a statement of fact.”
While the emphasis right now is on federal reform, states, in many ways, are leading the charge.
Between 1999 and 2013, New Jersey and New York saw a drop of 29 percent and 27 percent, respectively, in their prison populations, according to a report by The Sentencing Project. By 2013, California had reduced its prison population by 22 percent from its peak in 2006.
In California, two ballot measures – one reforming the state’s draconian three-strikes law and one changing felony laws around some drug offenses and reducing some felonies to misdemeanors – helped with the shift. In New York, the drop had more to do with revised priorities for district attorneys in New York City, and their decision to become less aggressive in the sentences they sought.
One of the most successful states, even though its overall prison population has gone down only marginally, is Texas, says John Pfaff, a law professor at Fordham University School of Law in New York.
Thanks to policies emphasizing diversion programs and treatment for offenders suffering from mental illness or substance abuse, as well as more discretion for prosecutors and judges, Texas’ incarceration rate has dropped sharply, as has its crime rate.
“The states are innovating, and the Feds are adopting,” Professor Pfaff says.
Pfaff was somewhat disappointed that in Obama's commutations, he didn’t include at least one violent offender where there was still good reason for a lesser sentence and early release. While the bulk of the federal prison population may be nonviolent drug offenders, that isn’t the case for the state prison populations, where more than half of inmates were convicted of violent crimes.
“We’re not going to be able to have a deep cut [in prison populations] unless we’re willing to talk about it,” says Pfaff. “Not all violent offenders are all that violent.”
But the conversation going on at the federal level – especially by leaders in the Republican Party – makes it more possible for states to enact reforms of their own, says Chettiar of the Brennan Center.
“The more the president talks about it, and the more national leaders talk about it, the more there is cover provided for state leaders to act,” she says. Having top Republicans calling for criminal-justice reform, meanwhile, “not only created cover for their own party, they created cover for Democrats.”
After years of calling for changes, activists for reform say they’re cautiously optimistic that a meaningful bill will be passed in Congress and that states will continue to make changes.
The real questions, says Pfaff, are whether such reforms will continue even as the economy improves or if there’s another spike in crime. The positive examples of states like Texas and California may help persuade states to cut incarceration rates, even without the economic pressures to cut costs, he says. But he’s less optimistic about what might happen if crime rises again.
“We’re in uncharted waters,” Pfaff says.