Sunday Commentary: Can Bipartisan Support for Reform End Mass Incarceration?


prison-reformFor the first time this week, the door is open for the possibility of meaningful prison reform.  Earlier this week, Eric Holder, the much-criticized US Attorney General, speaking at the American Bar Association, said the words that many have been waiting to hear since the Obama Administration began in 2009: “Too many Americans go to too many prisons for far too long, and for no truly good law-enforcement reason.”

His speech and modest policy change marks only the beginning.  As the Economist wrote this week, “America has the world’s largest prison population. China, which has more than four times as many people and nobody’s idea of a lenient judiciary, comes a distant second. One in 107 American adults was behind bars in 2011 – the highest rate in the world – and one in every 34 was under ‘correctional supervision’ (either locked up or on probation or parole). A black man in America is 3.6 times more likely to be incarcerated than a black man in 1993 in South Africa, just before apartheid ended.”

The problems in the federal system are extraordinary.  A first-time offender convicted of possessing five grams of crack receives a mandatory minimum sentence of five years.  The penalties only go up from the there.

As the Economist notes, “Conviction as part of a ‘continuing criminal enterprise’ triggered a 20-year mandatory-minimum. Conspiracy laws made all members of a drug operation legally liable for all the operation’s crimes: a youngster whom drug dealers paid a few dollars a day to act as a lookout, for instance, could be hit with the same stiff penalties as his bosses.”

“Drug offenders are nearly half of all federal prisoners, and most people convicted of federal drug offences received mandatory-minimum sentences,” they write.

But mass incarceration is not only about incarceration, it is about the cycle of crime, punishment and poverty.  As I wrote a few weeks ago, there is a critical link between drug policies, unequal enforcement and the poverty-crime cycle.

Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, argues that once individuals, many of them African-American, get into the system, the system creates hurdles making it nearly impossible to get out. The unequal enforcement of and damage from a single early conviction has a huge ripple effect down the line.

The argument of Michelle Alexander is this: “In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind.”

Once an individual enters the criminal justice system, she argues, “the old forms of discrimination – employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service – are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow.”

It was heartening to hear Eric Holder hearkening to these arguments this week in his speech.

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them,” the Attorney General said.

The Attorney General noted that “people of color often face harsher punishments than their peers.”  He cited a report that showed “black male offenders receive sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.”

Mr. Holder stated, “This isn’t just unacceptable – it is shameful.”

“We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system,” he continued.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder said. “It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”

Many people are excited about the possibilities here.  However, they note that, while as the ACLU’s Vanita Gupta said, “This is without precedent: the nation’s top law enforcement official directed all federal prosecutors to exercise their discretion toward ending the relentless warehousing of inmates – the vast majority of whom are minorities – in federal prison for low-level drug crimes,” the immediate impact is limited.

First, as Ms. Gupta warns, federal inmates only account for 14 per cent of all prisoners.  Second, the attorney general can only do so much without congressional action.  And finally, “It’s unclear how federal prosecutors will enforce his plan. To maximize its impact, the Justice Department needs to track implementation by the 93 United States attorneys around the country and hold them accountable for enforcing the policy.”

“What Mr. Holder has done is turn up the dial, lending his imprimatur to a growing sense of national urgency and moral necessity. The muted reaction to his announcement from ardent conservatives is a reflection of the shift in debate,” she writes.

The Sacramento Bee‘s editorial board wrote, “It’s taken too many years. Nonetheless, U.S. Attorney General Eric Holder’s announcement that he has instructed federal prosecutors to stop pursuing long prison sentences for minor drug offenders is welcome.”

Further, there is hope because, for once, both the left and the right see problems with the current system.

Notes the Economist, “The high cost of mass incarceration has attracted attention from both left and right. In March Rand Paul, a Republican senator, and Patrick Leahy, a Democratic one, introduced the Justice Safety-Valve Act of 2013, which would let judges impose sentences below the mandatory minimum. In July Mr. Leahy, along with Dick Durbin and Mike Lee, a Democrat from Illinois and a Republican from Utah, introduced the Smarter Sentencing Act of 2013. It would, among other things, shorten mandatory minimums and expand the safety-valve.”

The Bee notes, “Both conservatives and liberals have recognized that over-reliance on incarceration in the nation’s five-decade-old ‘war on drugs’ has been a costly failure. Three years ago, Congress passed and President Barack Obama signed the Fair Sentencing Act, aimed at reducing the disparity in sentencing between crimes involving crack cocaine and powder cocaine.”

And while Ms. Gupta is right about the need for the states to enact reform, here the states have actually largely been ahead of the federal government.  As the Economist notes, “These policy shifts mirror similar ones that more than half of all American states have enacted over the past decade.”

Texas, for instance, enacted a law that would send people to probation rather than prison for minor drug charges.  “In 2007 Texas allocated $241m for drug-treatment and alternatives to prison for non-violent offenders,” the Economist reports. “Between 2003 and 2011 violent crime in Texas fell by 14.2%. The state’s prison population has also declined steadily.”

This offers a strong counter to those who claim falling crime rates indicate that “prison works.  The reason crime has fallen so sharply, they say, is that bad guys who are locked up cannot mug you.”

“This is true,” the Economist continues, “but America long ago passed the point where imprisoning more people is a cost-effective way of reducing crime. Bert Useem of Purdue University and Anne Morrison Piehl of Rutgers University find ‘accelerating declining marginal returns’ to incarceration in America. In other words, locking up violent criminals while they are young, strong and reckless does indeed keep the streets safer, but keeping them locked up deep into their dotage costs a fortune and prevents very few crimes.”

This is the first step from the federal government.  Can the bipartisan legislation pass?  That will be critical to the next step, because if the federal government finally leads, if Eric Holder uses his power of the bully pulpit to push for reforms, legislators and states will feel on safer political ground to pass badly-needed reforms.

Until we deal with mass incarceration, we cannot deal with the cycle of poverty, because it is so pervasive in creating a new underclass that is permanently disenfranchised, and constrained with legal prohibitions that prevent work and prevent people from escaping the vicious cycle of poverty-crime-punishment.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 thoughts on “Sunday Commentary: Can Bipartisan Support for Reform End Mass Incarceration?”

  1. Frankly

    [quote]Mike Huckabee: “I finally found something I can agree with Eric Holder on.”[/quote]
    [quote]Rachel Maddow: “As best as I can tell, not one member of the congressional Republican leadership in either chamber criticized Holder’s decision in any way.”[/quote]
    From my perspective, the difficulty getting this done will be 100% the result of Obama and the Democrat’s divide and conquer strategy for gaining and retaining political power.

    Frankly, with so much political capital spent on Obamacare, and with the continued left and media one-sided hostility toward conservatives while they surround and protect the Teflon Messiah, I think many conservative constituents feel more motivated to block Obama and the Democrats from accomplishing anything that could increase their political capital.

    And for those of you with your head in the sand denying this, just take a look at what the media is reporting on the state of Obamacare’s horrendous implementation, increased negative impacts and increased cost overruns. The new left and media narrative is that ALL the problems are due to red states not bending over to do Obama’s bidding. Right. This is just more divide and conquer hogwash and a clear indication that the Democrats continue to ride a black horse of no accountability.

    Obamacare is becoming the big albatross around the Democrat’s neck and it is causing the country to bypass opportunities for other policy issues that make sense.

    But the media will not report that. The media will report that it is the GOP blocking progress again. And the net result of that will be even greater anger from the political right that results in even less cooperation.

  2. Don Shor

    Gosh, I’d love to debate the Affordable Care Act with you, since I completely disagree with your assessment, but the topic of this article is prison reform.

  3. Davis Progressive

    it’s a rather remarkable transformation of the political scope from the mid-90s when everyone was falling over themselves to be tough on crime. i’m still a little perplexed by frankly’s position on this issue (not obamacare). when david presented many of these ideas only a few weeks ago, you seemed opposed.

  4. JustSaying

    Excellent summary of this important issue. Although the big numbers aren’t the federal prisoners, the fact that Holder kicked off the discussion with this announcement may start a quiet, massive change at the state level.

    That this hasn’t been jumped on with a bunch of law and order mumbo-jumbo and, frankly, efforts to manufacture the typical unrelated, anti-Obama remarks bodes well for success in reducing our world-record prison population.

  5. Frankly

    [i] i’m still a little perplexed by frankly’s position on this issue (not obamacare). when david presented many of these ideas only a few weeks ago, you seemed opposed. [/i]

    Nope – I support decriminalization of certain non or low-addictive recreational drugs, but only if we include investment in treatment programs funded by the saving we should be able to realize from decreases in spending on law enforcement and incarceration.

    My point was that I expect nothing to happen on this subject because our politics are divided.

  6. Frankly

    [i]Gosh, I’d love to debate the Affordable Care Act with you[/i]

    I seems that we will have plenty of time given all the executive orders to delay and exclude for the implementation.

    This thing is a giant mess. It a mess that is 100% owned by Democrats.

    And it appears that some of the Teflon is started to wear off the Messiah.
    [quote]Gallup Editor-in-Chief Frank Newport shares that 52% of Americans disapprove of the Affordable Care Act, up slightly from 45% in November 2012. [/quote]

    The connection here is that Obamacare will make the healthcare system in this country crappier. Releasing incarcerated drug users where they currently cannot use and would have access to healthcare, into a decriminalized drug environment where they can use to their heart’s content but then have even less quality care access… is not a very good deal at all.

    But my main point was/is that Obamacare has poisoned and is continuing to poison the well of bipartisan cooperation so that even good policy ideas like this coming from Eric Holder are not likely to happen.

    If no good deed goes unpunished, then bad deeds will punish us all.

  7. Don Shor

    [quote]It’s off topic.[/quote]
    Yeah, that was my point, too.
    Here’s the text of the Smarter Sentencing Act introduce by Sen’s Durbin (D), Lee (R), and Leahy (D): [url][/url]


    My heart is broken. Prison incarcerations: 7 out of 10 black men spend time in prison. 50% of the prison population or more currently occupy American prisons. Michele Alexander says that it is slavery by another name. The chains are made of poverty. But useful wealth lies in the life of these individuals. They are a population that could serve the world’s underdeveloped people if only trained properly. Our country and indeed the world needs their ingenuity. Let’s harness this power as we move deeper into the post industrial period.

  9. Frankly

    [i]It’s off topic[/i]

    Not really… unless you want to keep your head in the sand.

    There are four issues:

    1. This will require bipartisan cooperation since the political risk resulting from a released prisoner hurting or killing another means no one Party will act on it. And, constituents on the right are about as unwilling to support their representatives working with their Congressional peers on the left as they have even been… maybe except since the Civil War.

    2. Lack of enhanced drug abuse treatment combined with decriminalization means that we will have more use and more social problems resulting from increased use. See item #1.

    3. Obamacare is making a mess out of healthcare at the very time we would be putting many drug users back on the street with fewer incentives to stop using.

    4. The Obama jobless recovery (because he and the Democrats have spent most of their effort pushing us toward socialized medicine instead of spending effort fixing the economy so it will grow jobs) also exacerbates the social problems we will experience from a boost to the population of unemployed drug users.

    My point is that despite all this giddy excitement that we might see this progressive change, there are a lot of problems that will serve to prevent it. And most of the cause of those problems fall directly at the feet of our unaccountable Teflon Messiah president and his minions.

  10. Frankly

    [i]My heart is broken. Prison incarcerations: 7 out of 10 black men spend time in prison.[/i]

    Well unless there public services are strengthened to help deal with drug abuse, your heart will still be broken once they are released from prison. In fact your heart might be broken even more as their inability to control their drug use will lead to them harming families, friends and communities… something they cannot do while incarcerated.

  11. Don Shor

    Under the ACA, substance abuse treatment will be considered part of primary care, will be considered an essential service (meaning health care plans will have to cover it), and will cover early treatment. All of that differs from the current situation. So the ACA will expand health coverage for substance abuse dramatically.
    All it will take for the bipartisan Senate bill to move forward, assuming it passes the Senate, is a majority of Republicans in the House indicating support so the Speaker can move it forward. I haven’t seen any evidence of interest groups lining up against it.

  12. jimt

    Good article David.
    I bet you’d find a majority of citizens would be in support of more lenient sentences (in lieu of long prison sentences) for minor nonviolent drug crimes (as the majority of the CA population supported 3 strikes reform recently). Though it is true that drug use is often associated with or followed by more serious crime, it it also true that there are drug-users and small-time dealers who would never to tempted into a violent lifestyle of burglaries, robberies, gang-activity etc.; temperaments differ widely.

    I don’t see it necessarily as a racism issue though: re: “black male offenders receive sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.” The devil is in the details here; you have to separate the populations into those that are first-time offenders from those that are re-offenders, and define what is meant by ‘similar’ crimes; go thru all those pesky dreary details before the implication of racist treatment can be taken seriously; although the quote makes a good sound bite for a politico.

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