Federal Prison Reform and Unusual Allies

Common Sense and Federal Prison Reform

In a piece from Truth-Out entitled “Push to Reform Prison System Brings Unlikely Allies Together”, the unusual and unlikely are no joining forces to push for federal prison reform that has been needed for over two decades. (See Sentencing Reform Act of 1984). Excerpts from the Truth-Out article are below:

Over the past 15 years, the US prison population has more than doubled. There are 2.3 million Americans behind bars – that’s one in 100. About half of the people in prison are serving time for nonviolent offenses, including drug possession. More than 60 percent of US prisoners are black or Hispanic, according to the Pew Center on the States.

With just over 4 percent of the world’s population, the US accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined.

Corrections is now the second-fastest growing spending category for states, behind only Medicaid, costing $50 billion annually and accounting for $1 of every $14 discretionary dollars. California spends approximately $50,000 per prisoner per year, far more than the state spends on students.

The push to reform the prison system has brought unlikely allies together. Earlier this year, the National Association for the Advancement of Colored People joined forces with Republican presidential hopeful Newt Gingrich who is part of a new prison reform initiative called Right on Crime.

In September, Inimai Chettiar, policy counsel at the American Civil Liberties Union wrote about speaking alongside members of Right on Crime and the faith-based Prison Fellowship at the American Bar Association’s initiative to “Save States Money, Reform Criminal Justice and Keep the Public Safe.”

“Never before have so many legislators, governors and advocates from all sides of the aisle come together with a single unifying theme on criminal justice: we need to end our addiction to incarceration,” she writes.

Yet, it’s all too rare to hear about their efforts.

Tim Cavanaugh, managing editor of Reason.com, the web site for the libertarian Reason Magazine, says prison reform should be a major issue for conservatives, yet more often than not, it’s falsely framed as a liberal issue. He notes that Mario Cuomo, the “great liberal governor of New York,” was the pioneer of the three-strikes-and-you’re-out law, and California, the most liberal state in the country, passed a three-strikes law in 1994.

Reason’s July issue was dedicated to prison reform with articles focusing on prosecutorial misconduct on death row, the costs involved in leading the world in locking up human beings and how California prison guards became the country’s most powerful union.

Cavanaugh says one solution would be a ten-year moratorium on new laws at the city, state and federal levels. He would also end the so-called war on drugs. “You can get rid of a huge body of cancerous US legal code just by eliminating the war on drugs. Ending the war on drugs would solve these problems,” he says. “We are the revolutionaries. We are the ones who are trying to tear down the castle walls and there are a lot of folks who want to keep it.”

Why the Resistance to Less Incarceration?

The simple answer to the title of this section is: Money. The prison industry makes billions of dollars every year, and the growing trend is in private prisons. The Justice Policy Institute did a major report on the private prison industry which explains its lobbying and influence on justice policies that keep their prisons full (read: profitable).

The report (available here) is called “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies.” Here are the basics:

At a time when many policymakers are looking at criminal and juvenile justice reforms that would safely shrink the size of our prison population, the existence of private prison companies creates a countervailing interest in preserving the current approach to criminal justice and increasing the use of incarceration.

While private prison companies may try to present themselves as just meeting existing demand for prison beds and responding to current market conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

For-profit private prison companies primarily use three strategies to influence policy: lobbying, direct campaign contributions, and building relationships, networks, and associations.

As policymakers and the public are increasingly coming to understand that incarceration is not only breaking the bank, but it’s also not making us safer, will this shrink the influence of private prison companies? Or will they use their growing financial muscle to consolidate and expand into even more areas of the justice system? Much will depend on the extent that people understand the role for-profit private prison companies have already played in raising incarceration rates and harming people and communities, and take steps to ensure that in the future, community safety and well-being, and not profits, drive our justice policies. One thing is certain: in this political game, the private prison industry will look out for their own interests.

Judges speak against the “War on Drugs”

Life without Parole for Selling Drugs

In a Fourth Circuit Court of Appeals concurring opinion, Judge Davis wrote what many judges, including the sentencing judge in the district court below in this case, have expressed about the mandates for sentencing incumbent in the “War on Drugs”.

It is said so well in Judge Davis’ concurring opinion that I will simply get out of his way and post an excerpt below. The entire opinion is a good read if you are interested in federal sentencing policy-insanity.

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond…

[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison….

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure…. Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful … the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.