Monday, August 31, 2015

Criminal Justice Reform: A New Hope?

Introduction

The public, legislators, prison officials, judges, and historians alike are all waking up to the fact that the United States’ criminal justice system is clearly in dire need of reform. And finally, it appears that the words criminal justice + reform are gaining momentum to reveal that the status quo of an inefficient and expensive system is unacceptable in this country.

As it stands, with about 5% of the world’s total population, the U.S. houses almost a quarter of the world’s total prisoners, which is equivalent to 2.23 million behind bars, four times as many incarcerated than four decades ago. However, the difference in incarceration rates is not due to the U.S. having a considerably higher rate of crime in comparison to the rest of the world. In the 1980s, incarceration rates began their sharp rise, coinciding with the advent of the war on drugs, mandatory minimum sentences, and three-strikes laws. 

Today, one can find numerous federal prisoners serving life sentences without parole for nonviolent offenses, resulting in a de facto death sentence. The United States’ reliance on excessive punitive sentencing over the past three decades has destroyed individual lives, families, and communities as well as put an enormous strain on federal spending and prison population capacities. The criminal justice system has blatantly forgotten that “how much time prisoners spend behind bars is no less important than that of whether only the guilty are being locked up.” (Honorable Alex Kozinski, Criminal Law 2.0.

However, major changes are finally in motion to address this costly and outdated federal sentencing and corrections system. For example, on June 25, 2015, Representatives Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA), backed by the American Civil Liberties Union and Koch Industries, unveiled the bipartisan Safe, Accountable, Fair and Effective (SAFE) Justice Act (H.R. 2944). Arguably one of the most significant bills on the table, its provisions would reserve drug trafficking life sentences and other major penalties for high-level drug bosses rather than low-level dealers, provide sentencing flexibility to judges, and focus federal resources away from drug possession enforcement. The act is aimed at addressing over-criminalization in the federal criminal justice system and to bring it into greater alignment with state-level sentencing. The SAFE Justice Act would also create specialized courts for drug crimes and the mentally ill, and put a much greater emphasis on prison programming. Just weeks later on July 16, 2015, President Obama became first sitting president to tour a federal prison, meeting with six El Reno inmates, in their medium-security Oklahoma Federal Prison. With numerous politicians eager to leave their mark on historical reform, what was once a bleak outlook for those convicted of federal drug offenses, now potentially face a more just legal system.

History of Legislation

The current prison crisis is the result of two important legislative and historical events leading up to their implementation. The first was the Comprehensive Crime Control Act of 1984, signed into law by President Ronald Reagan, the first comprehensive revision to the U.S. criminal code since the early 1900s. Among its integral provisions was the Sentencing Reform Act, which established the United States Sentencing Commission, an independent agency of the judicial branch responsible for articulating Federal Sentencing Guidelines for all U.S. federal courts. The Guidelines determine sentences based on two primarily factors: the conduct associated with the offense and the offender’s criminal history. The Guidelines rely on a rigid sentencing table that is broken into four sentencing zones. These Guidelines were modified in 2010 as part of the Fair Sentencing Act signed into law by President Obama. The Fair Sentencing Act was an effort to reduce the disparity between the amount of crack cocaine and powder cocaine possessed by an individual needed to trigger certain U.S. federal criminal penalties, from a 100:1 weight ratio to an 18:1 weight ratio and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine, among other provisions.
           
The second, and most influential act, was the Violent Crime Control and Law Enforcement Act of 1994 (“1994 Act”), representing the largest crime bill in the history of the United States. Driven into law by public sentiment following the 101 California Street shootings, the 1993 Waco siege, and other high-profile instances of violent crime, the 1994 Act expanded federal law in several ways. First, the Act created a variety of new crimes relating to immigration law, hate crimes, sex crimes, and gang-related crime, simultaneously increasing penalties for many of these newly defined crimes. The 1994 Act also increased the number of federal crimes punishable by death and established procedures whereby the death penalty might be enforced. It contained a “three strikes” provision requiring a sentence of life imprisonment for violent three-time federal offenders. Finally, the Act imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. (H.R.3355 - Violent Crime Control and Law Enforcement Act of 1994 - 103rd Congress (1993-1994))

Impact

As a result of these two Acts and other measures, the U.S. prison and jail population has reached an all-time high, with over 2.23 million individuals behind bars, a 795% increase and the highest rate of prisoners per population in the world. The number of people on probation and parole has also doubled. (International Centre for Prison Studies.) 

In addition to changes in mandatory sentencing, crimes themselves have been wholly created where there previously were none. Between 1980 and 2013, the federal criminal code added approximately 2,000 additional crimes, often written in vague and sweeping language. The result has been a legal environment that tolerates over-criminalization and often disproportionately lengthy sentences. Since the passage of the above legislation, courts have routinely sentenced defendants to severe prison terms which arguably do not fit to the crime. For example, an individual convicted of burglary in the U.S. serves on average of 16 months in prison, compared to five months in Canada and seven months in England. Similar discrepancies exist for assault charges, with an average sentence of 60 months in the US compared to just less than 20 months in England. (U.S. Prison Population Dwarfs That of Other Nations, N.Y. Times April 23,
2008)
           
Not only has this resulted in strained prison capacities, but incarceration is enormously expensive for taxpayers as well. The average cost of housing a single prisoner for one year is approximately $30,000, with longer terms, such as a 20 year sentence, averaging around $600,000.  Federal spending on prisons has soared from $970 million to more than $6.7 billion in the past three decades, mostly due to the mandatory sentencing of nonviolent, low-level drug offenders. A closer look at which communities are most heavily impacted by mass incarceration reveals stark racial and ethnic disparities in U.S. incarceration rates in every region of the country. African Americans have a 1 in 3 chance of spending some time in jail, those of Latino decent have a 1 in 6 chance, while those of Caucasian decent have a 1 in 17 chance. (E. Ann Carson, Ph.D., Bureau of Justice Statistics.)  Eliminating the racial disparities inherent to the U.S. criminal justice policies and practices must also be part of criminal justice reform.

Conclusion
           
The current administration, with bipartisan support, appears to be embracing criminal justice reform. On July 13, 2015, the President commuted the sentences of 46 nonviolent drug offenders, marking the most commutations a president has issued on a single day in the last four decades. Also, the Clemency Project 2014 is assisting prisoners in seeking commutation and is eligible to those who have already served 10 years, have demonstrated good conduct, have no history of violence prior to or during their term of imprisonment, among other criteria. See https://www.clemencyproject2014.org/

The U.S. Sentencing Commission also held a public meeting on August 7, 2015 to discuss an amendment to the Sentencing Guidelines that would eliminate the residual clause from the Career Offender guideline and address other issues that will take priority in the 2015-2016 amendment cycle. And the “Drugs Minus Two” reform (an Act passed in April 2014) has enabled thousands of prisoners to reduce their prison sentences by petitioning the court the past year. 

In a town where there is rarely a gathering of bipartisan support, it appears that criminal justice reform may be the one issue uniting the nation’s capital. Even last month’s Bipartisan Summit on Fair Justice drew politicians from all sides of the aisle. The goals of criminal justice reform include fair and appropriate treatment of juveniles, reforming mandatory minimum sentences, expanding alternatives to incarceration while reducing recidivism, and enabling prisons to offer programs that allow smoother transitions back into society. Undoubtedly, it will take years to transform a broken criminal justice system, but it appears that the tipping point for reform has finally been reached and it’s a start, as the public, press, and lawmakers are waking up to the long overdue and necessary changes.