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Bi-Partisan Agreement: The criminal justice system is broken

Written By | May 12, 2015

WASHINGTON, May 11, 2015 – As crime rates have fallen across the country, the number of people in prison has increased dramatically. More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 per cent increase  over the past 40 years. Although the U.S. acccounts for about 5 per cent of the world’s population, it houses nearly 25 per cent of the world’s prison population. The per capita incarceration rate in the U.S. is about one and a half times that of second place Rwanda and third-place Russia, and it is more than six times the rate of neighboring Canada.

Another 4.75 million Americans are subject to state supervision imposed by probation or parole.

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U.S. District Judge Jed S. Rakoff of the Southern District of New York reports, “Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession.  And even though crime rates in the U.S. have declined consistently for 24 years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer. For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.”

Liberals and conservatives are coming together in an effort to deal with our broken criminal justice system, something increasingly rare in hyper-partisan Washington. Koch Industries, the conglomerate owned by the conservative Koch brothers and the Center for American Progress, a Washington-based liberal issues group, have come together to support a new organization called the Coalition for Public Safety. The coalition plans a multi-million dollar campaign on behalf of emerging proposals to reduce prison populations, overhaul sentencing and reduce recidivism. Other groups on the left and right, including the American Civil Liberties Union, Americans for Tax Reform and  the tea party-oriented FreedomWorks are also part of the coalition.

With the huge costs to the public of an expanding 2.2 million prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opponents joining together.

Last year, Sens. Cory Booker, D-N.J., and Rand Paul, R-Ky., together wrote legislation aimed at helping nonviolent offenders seal their records. In February, Sen. John Cornyn of Texas, the No. 2 Republican in the Senate, and Sen. Sheldon Whitehouse, D.-R.I., introduced legislation aimed at cutting prison populations by allowing eligible prisoners to reduce their time.

Criminal justice reform will not be easy. One of the difficulties is that power is spread so diffusely through the system. “Criminal justice is a system, and no one person or group is in charge of it,” says Alfred Blumstein, a professor at Carnegie-Mellon University. “You have legislators who decide what’s a crime and establish the range of penalties. You have judges who impose the sentences. You have police who decide whom to arrest. And you have prosecutors who have wide discretion in what cases to bring, what charges to call for and what sentences to agree to in plea bargains.”

Blumstein and others place some of the responsibility for mass incarceration on lawmakers who in the 1980s and 1990s dramatically increased sentences, especially for narcotics offenses. When Congress revised federal sentencing guidelines in the 1980s, it not only increased the length of most prison terms but also established a sentencing disparity of 100-1 between crack cocaine, often used by blacks, and powdered cocaine, favored by whites. The disparity was revised in 2010 and is now 18-1.

Another reason for mass incarceration are statutes imposing mandatory minimum terms of imprisonment, eliminating judicial discretion. Beginning in the 1970s, Congress passed laws dictating much harsher mandatory minimum terms of imprisonment for a wide variety of criminal violations. These laws imposed mandatory minimums of 5, 10 and 20 years for many drug offenses and as much as 25 additional years for possession of guns during drug trafficking.

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They also imposed mandatory minimum terms of imprisonment for a wide variety of offenses, from possession of child pornography to aggravated identity theft  to stalking other persons in violation of a restraining order.

The result, notes Judge Rakoff, was this: “No matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”

A question about which there remains disagreement is whether these laws have been part of the reason we have succeeded in reducing crime. Overall crime rates have been cut in half since they reached their peak in 1991, and they are now at levels not seen in many decades. An argument can be made that, by locking up people who are most likely to commit crimes for an extended period, we have incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place. Since we do not know if this is true, it makes changing the status quo very difficult.

Critics of reform, such as Michael Rushford of the right-leaning Criminal Justice Legal Foundation, make this point: “The new mantra from the reformers is for ‘evidence-based’ solutions and assessments to determine who is low risk, and then we find that some of them go out and slaughter people.  What the reformers never want to talk about is that, in the eighties and nineties, once we incarcerated a lot of people, the crime rate went down dramatically around the country. Over the past 10 years, we’ve been winning the war of attrition on crime, because the deterrent effect works. People don’t commit crimes because they don’t want to go to prison.”

One group opposing reform is the increasingly powerful private prison system, which has an economic stake in continuing mass incarceration. While reform must be carefully considered and entered into cautiously, the mass incarceration of hundreds of thousands of men and women for lengthy periods of time for non-violent, usually drug-related, offenses, has many negative consequences for society.  In March, Justice Anthony Kennedy of the Supreme Court told a House subcommittee considering the court’s annual budget, “This idea of total incarceration just isn’t working,” adding that in many instances it would be wiser to assign offenders to probation or other supervised release programs.

The alliance of liberals and conservatives seeking reform of our criminal justice system seems to have public opinion on its side. A recent Reason-Rupe poll found that 77 percent of Americans now favor eliminating mandatory minimum sentencing, while 73 percent support allowing nonviolent drug offenders who have served their sentences to vote. “It’s an incredible political shift,” said Inimai Chettiar, director of the Brennan Center for Justice, a policy institute at New York University School of Law.

We see Republicans calling for reform, along with Democrats. Sen. Paul wants to end mandatory minimums for nonviolent drug crimes.  Former Texas Gov. Rick Perry and Louisiana Gov. Bobby Jindal have embraced drug-court treatment programs as alternatives to incarceration. Chris Christie has called for an end to the “failed” war on drugs.

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Among Democrats, Hillary Clinton has called for more lenient treatment of low-level offenders. “We don’t want to create another incarceration generation,” she said.

Increasingly, conservatives are taking the lead in pushing for criminal justice reform. Social conservatives have been concerned about the moral costs of shattered families, libertarians are concerned about jails filled with nonviolent offenders and fiscal hawks have pointed to the 400 percent increase in prison spending over a 30-year period that saw crime rates plunge.  “There was a growing realization on the conservative side that this wasn’t working,” says Pat Nolan, director of the Center for Criminal Justice Reform at the American Conservative Union Foundation.

It is time to see problems in our criminal justice system as far more complex than the frequent charges of “racism” we hear. Edward Flynn, chief of police in Milwaukee, says that he relies on crime data to direct officers to the most dangerous neighborhoods:  “The reality for urban police practitioners is that we respond to the overwhelming victimization of black people. Every community meeting I go to in an African-American neighborhood is fueled by demands for more effective police services. The sad fact is that most violent offenders look like their victims. So that means everything we do is going to have a disparate impact on communities of color.”

The old saying, “If it ain’t broke, don’t fix it,” has much merit.  In the case of our criminal justice system, however, it does appear to be “broke.” That both liberals and conservatives, Republicans and Democrats, recognize this and are working together to make needed change is a hopeful sign.

Perhaps we can move beyond gridlock and address not only this problem but others, such as our deteriorating infrastructure, that are beyond politics. We would then be acting like grown-ups, something politicians of both parties seem to do their best to avoid.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.