A Bipartisan Moment for Criminal Justice

By Jeremy Haile, The Sentencing Project
Feb. 29, 2016

In his new book, Cory Booker writes about a visit he made to Newark, New Jersey last summer. As the senator walked around a low-income, predominantly African American neighborhood, he asked dozens of men if they had ever been arrested and sent to jail or prison. Not a single one said no.

This is America in 2016 — a land Booker and others call “incarceration nation.” Across the United States, there are more than 2.2 million people behind bars. Nearly five million others are under other forms of supervision and control of the criminal justice system. Tens of millions of Americans have been arrested at some point in their lives.

Compared with other industrialized democracies — Canada, France, Germany — we lock up our citizens at about five to eight times their rate. The U.S has more prisoners than China, a country with two dozen cities larger than Chicago.

Our mass incarceration structure is intimately connected with our racial history. Black men are incarcerated at a rate six times greater than white men, and black women at a rate twice that of white women. Of black males born in 2001, about one in three could expect to spend at least a year of his life in prison.

These problems were not caused by dramatic increases in crime rates. Rather, they were caused by choices we made — to put more people in prison and to keep them there for longer periods of time. Mandatory minimum sentencing, “three strikes” laws, the War on Drugs — these “tough on crime” policies helped increase the nation’s prison population by 500% in just three decades.

The imprisonment of so many people has come at tremendous cost. Prisons isolate individuals from their families and communities, and create environments with high levels of stress and violence. And when people leave prison, we punish them for being punished. Formerly incarcerated individuals are frequently barred from jobs, housing opportunities, food assistance, andvoting, not just through social stigma but also due to policy barriers erected at the federal and state levels of government.

Former prisoners do not suffer these consequences alone. The children of incarcerated parents are more likely to drop out of school, engage in illegal activity, and subsequently be incarcerated themselves. In some neighborhoods with high incarceration levels, the absence of men — disproportionately black men — has contributed to a gender imbalance of about 60 men for every 100 women. This means more poverty-stricken families and less stable communities.

Despite this discouraging story, there are reasons for optimism that these trends can be reversed. Across America, neighborhoods and city streets are safer than they have been in decades. After nearly 40 years of growth, prison populations have stabilized and even begun a modest decline. States in every region of the country have taken steps to scale back harsh criminal penalties and promote alternatives to incarceration, while maintaining public safety. In the four states that have reduced their prison populations by more than 20%, crime rates have dropped at a pace faster than the national average.

Which brings us to Congress, where a rare bipartisan coalition of lawmakers has introduced the Sentencing Reform and Corrections Act (S. 2123), which would reduce the over-reliance on mandatory minimum drug penalties, allowing judges to make distinctions between the “kingpins” of the drug trade and those whose involvement is only at the street level. In recent decades, these penalties have been imposed on thousands of minor players in the drug trade — with limited benefit to public safety.

The legislation would also retroactively apply reforms in the Fair Sentencing Act of 2010, which reduced the unfair disparity between crack and powder cocaine. Under the bill, about 6,500 prisoners would be eligible to seek a sentence reduction in accordance with the lower penalties. Because of racial disparities in law enforcement, more than 80 percent of those serving federal sentences for crack offenses are African American.

Of course, the Sentencing Reform and Corrections Act would not end mass imprisonment. With more than 90% of the nation’s prisoners housed at the state level, no federal bill can solve the problem alone. But according to the U.S. Sentencing Commission, the legislation would have a substantial impact in reducing the federal prison population and addressing unwarranted racial disparities. Moreover, the bill’s bipartisan passage would serve as a model for state consideration and contribute to a national rethinking of harsh sentencing policies.

In recent years, it has been enormously encouraging to see Republicans and Democrats come together to address the problems in our criminal justice system. A few years ago, the term “mass incarceration” was controversial. Now members of both parties are using that term as a statement of fact.

Though election year politics are heating up, there is still time for Congress to take up the bipartisan Sentencing Reform and Corrections Act. After decades of failing policy on crime and punishment, America needs a smarter approach.