Federal Justice Reforms are Important — But They’re No Moon Landing

By Jeff Adachi

Senators on both sides of the aisle are poised to overhaul who gets locked up and for how long. This package of criminal reforms has been billed as a once-in-a-generation chance to fix the system — a giant leap for mankind, at least when it comes to justice.

But as a public defender for nearly 30 years, I know it is no moon landing.

Don’t get me wrong. The effort marks an important first step toward a more humane system. If passed, the bi-partisan legislation would cut the length of mandatory minimum sentences and narrow the crimes to which they can be applied. Juvenile offenders will no longer be kept in solitary confinement. Judges will be allowed to take back some discretion from prosecutors, and reentry programs will get a much-needed cash injection.

All of that is unquestionably good. However, it will not help the vast majority of incarcerated people or their families.

These reforms will only affect the federal system, which represents a mere nibble of the prison pie. Its potential impact — or lack thereof — highlights the unwieldy problem wrought by decades of mass incarceration. Our prison industrial complex is so mammoth, that even if we released every federal prisoner, we would still lead the world in number of citizens locked up.

In fact, federal prisons house only 9 percent of people behind bars in the U.S. For meaningful change, each state would have to pass major reforms. California, true to its reputation, is leading the way in admitting its mistakes and forging new paths. Countless Californians suffered under the misguided “Three Strikes” law passed in 1994 at the height of the “tough on crime” movement.

The ill-conceived legislation required imprisonment for a minimum of 25 years after conviction of a third felony.

It tore apart families, broke our prisons, burdened taxpayers — and failed to make us safer.

In 2012, voters had had enough. They overwhelming passed Proposition 36, repealing much of what made Three Strikes so unforgiving. The new law bars judges from imposing a life sentence on most offenders who commit minor crimes. It also allowed a reprieve for thousands of inmates who had been sentenced to life in prison for nonviolent crimes like credit card theft. Many were given early release or a shorter sentence.

Californians followed up in 2014 by passing Proposition 47, which reduced some nonviolent felonies to misdemeanors and invested the savings into education and crime prevention. A year after its implementation, fewer than 5 percent of state prisoners released early have been convicted of a new crime and returned to prison.

If that doesn’t convince more states to follow suit, consider the matter of racism, which is inexorably linked to support for draconian policies. In 2014, researchers at Stanford University found that when participants were shown mug shots of black people, they became more supportive of the Three Strikes law. In contrast, when shown mug shots of white faces, participants expressed a desire to make Three Strikes less punitive.

Mandatory minimum sentencing also shifts discretion from judges to prosecutors, who often overcharge or “stack” charges in order to coerce defendants to plead guilty. It should be the role of the judge — not a conviction-seeking prosecutor — to consider the facts of each individual case and use discretion to ensure fairness.

Today’s congressional push to overhaul the federal criminal justice system is important, but could be even more meaningful by eliminating mandatory minimum sentencing laws altogether. Instead, it will cut 10-year mandatory minimums for nonviolent drug offenses in half for people with no prior serious felonies. That reduction would not apply to anyone who sold drugs to a minor, so an 18-year-old who sold to a 17-year-old classmate would be out of luck.

Also ineligible are those who refused to give the feds the names of other drug users or sellers. This is especially troubling, since “snitching” can result in a death sentence on the street.

The package of bills also creates new mandatory minimums for certain crimes, such as a five year sentence for anyone convicted of providing “controlled goods or services” to states that sponsor terrorism. The list of banned substances includes various vehicle parts. Some interstate domestic violence charges will now carry a 10 year minimum sentence.

The bipartisan criminal justice package is needed. It is also politically safe. Rather than a once-in-a-lifetime miracle, let’s treat it as the first tentative step on the high road. Our lawmakers seem to have found their footing. It’s time to push them forward, because it’s a long journey toward true justice.

Jeff Adachi is the San Francisco Public Defender