The prison population is rising.
It’s a truth that has been acknowledged from those on the political left and the right. The fact remains that the United States is home to five percent of the world’s population, yet it houses 25 percent of the world’s prison population.
Why is this?
Because America is “tough on crime.” The Atlantic explains:
In an odd twist, deficit hawk Republicans are fighting with tough-on-crime Democrats to pass legislation for fairer, less aggressive prison sentencing. The Los Angeles Times writes that Congress is considering two bills — one that would cut in half mandatory minimum sentences, and another that would make it easier for prisoners to win early release. While budget-conscious Republicans see the shift as necessary to stem rising prison costs, Democrats are worried about appearing soft on crime. The thing is, the left has been here before.
Democrats’ fear of being labelled soft on crime was the impetus behind the 1986 law that introduced mandatory minimum sentences for drug offenses. The residual effects of that are evident today — President Obama is planning on granting clemency to “hundreds, perhaps thousands” of non-violent drug offenders serving mandatory long sentences, as Yahoo News reported on Monday.
According to Prison Policy Initiative, one in five incarcerated Americans were locked away for nonviolent drug offenses. Drug offenders make up nearly half of the prison population. More people are locked away for possession and use than for the sale and manufacture of drugs. What’s interesting is that while the rate of those convicted for drug possession and use spikes, the rate at which drug dealers and manufacturers are incarcerated has remained relatively consistent. If drug usage is a hydra, the criminal justice system is currently doing all it can to mindlessly hack off heads.
Mandatory minimums. The words are on the tip of every criminal justice reform advocate’s tongue. It’s these sentencing requirements, particularly for lower-level, nonviolent drug offenses, that have contributed to the dangerously high prison population. But what exactly are they? Families Against Mandatory Minimums (FAMM) explains:
Mandatory minimum sentences – set by Congress, not judges – require automatic, minimum prison terms for certain crimes. Most mandatory minimum sentences apply to drug offenses, but Congress has enacted them for other crimes, including certain gun, pornography, and economic offenses. For example, under federal law, selling 28 grams of crack cocaine triggers a minimum sentence of 5 years in prison. And if you’re caught selling 280 grams of crack, you’ll face a minimum of 10 years behind bars even if the judge does not think you need such a long sentence (there are a few exceptions such as safety valves and cooperating with the government).
FAMM offers a complete list of federal mandatory minimum sentences here.
This approach to sentencing is wonderful, if you like things that only work on paper. According to the Federal Bureau of Prisons (BOP), the prison system is clogged with drug offenders, who account for just over 46 percent of the prison population. Sex offenders only account for 8.5 percent of the prison population. For those who like numbers, U.S. Department of Justice (DOJ) Inspector General Michael E. Horowitz explained before Congress in 2013 that the detrimental costs of such a large prison system account for just over one-fourth of the DOJ’s budget:
The Department’s own budget reports demonstrate the fundamental financial challenges facing the Department. Fifteen years ago, the BOP’s enacted budget was $3.1 billion, which represented approximately 14 percent of the Department’s budget. In comparison, the Department has requested $6.9 billion for the BOP in FY 2013, or 26 percent of the Department’s total FY 2013 budget request. Moreover, the President’s FY 2013 budget projects the budget authority for federal correctional activities to rise from $6.9 billion to $7.4 billion by 2017.
BOP reported in 2013 that it cost nearly $29,000 to care for one inmate in the federal prison system.
FAMM offers a thorough list of resources here.
The opposition to mandatory minimums is bipartisan. Sen. Patrick Leahy (D-Vt.) stated in a press release that “In addition to driving up our prison population, mandatory minimum penalties can lead to terribly unjust results in individual cases.” Sen. Rand Paul (R-Ky.) noted “Our federal mandatory minimum sentences are simply heavy handed and arbitrary. […] We should not have laws that ruin the lives of young men and women who have committed no violence.”
And in 2015, the opposition became executive.
President Barack Obama expressed his desire for Congress to pass The Sentencing Reform Corrections Act of 2015, though it has since been updated. The bill was sponsored by Sen. Chuck Grassley (R-Iowa) and was cosponsored by 36 other senators (20 Democrats, 16 Republicans), including notable criminal justice reform advocates Sen. Rand Paul, Sen. Corey Booker (D-N.J.), Sen. Thom Tillis (R-N.C.) and Sen. Chris Coons (D- Del.). (Tillis and Coons recently appeared together at The Washington Post to address juvenile justice reform in a Facebook live.) The bill addresses mandatory minimums, as well as juvenile justice reform and solitary confinement.
We should not have laws that ruin the lives of young men and women who have committed no violence. -- Sen. Rand Paul (R-Ky.)
Reason Magazine breaks down the good, the bad and the missing. On the good end of the bill, second and third-strike nonviolent drug offenders would have their mandatory minimum sentences lowered from 25 years to 15 and from life to 25 years, respectively. Both reductions would be retroactive. The bill would also make the Fair Sentencing Act (FSA) retroactive. The 2010 passing of the FSA, signed by Obama, reduced “the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1.” Though both drugs are similar, more black Americans traditionally used crack cocaine, which carried harsher sentences than powdered cocaine. This led to racially disproportionate sentencing.
The bill would allow judges to work around a mandatory minimum sentence if a case meets certain requirements. It expands opportunities for judges to apply a “safety valve” exception, which allows for a sentence less than a mandatory minimum in situations where the defendant doesn’t have a prior “serious” felony conviction or in a situation where the defendant was not the leader or organizer of a criminal activity, they did not possess a gun, they pleaded guilty, and nobody died or was seriously injured (yes, all of those factors are combined requirements). Similar rules may also be invoked for a new safety valve exception that can reduce 10-year mandatory minimum drug sentences to five-year sentences. These “safety valves” are not retroactive and will not apply to those already sentenced.
The bill also comes with some setbacks, primarily four new mandatory minimum sentences. These are designed to target violent offenders, with Reason noting that the fourth was added to the updated bill. Updated sentences include a 15-to-25-year mandatory minimum sentence for federal drug offenders who had previously been convicted of a “serious violent felony.” If the bill is passed, a group of current offenders will be affected by the change. Similarly, the new bill carries a 20-year mandatory minimum sentence for domestic violence convictions that result in death, a five-year mandatory minimum sentence for providing weapons and/or aid to terrorists, and a mandatory minimum sentence enhancement of up to five years for drug crimes involving fentanyl. Reason notes that fentanyl is contained in prescription pain treatments, and the updated law seems to be an unfortunate reaction to the “current opioid abuse panic.”
Lastly, both FAMM and Reason report that the bill will be of little use to the near 50 percent of federal drug offenders who are subject to five-to-10-year mandatory minimum sentences. This hurts defendants who may be drug addicts or have mental illness. There is also no “safety valve” for cases where a gun, owned legally or illegally, was present but not used.
Still, the president is encouraging Congress to pass this bill.
But criminal justice reform advocates wonder if more could be done.
The history of the ‘war on drugs’
This is part three of our series “Pardon,” examining the state of nonviolent criminal justice reform as the Obama presidency comes to a close.