It was a dinner invitation from Newt Gingrich a few years ago that first led me to think change might be coming on criminal justice policy. The former Republican House Speaker had arranged the event with a small group of people concerned with America’s world record prison population. Along with Gingrich, Grover Norquist and other leading lights of the Republican right, we had an intriguing conversation about the runaway “war on drugs,” excessive federal prosecutions, and the failures of our prison system.
"After nearly four decades of steadily rising imprisonment — a 500% increase since 1972 — prison populations have finally started to decline."'
As someone who has labored on these issues for several decades I had gotten used to fighting losing battles: trying to convince policymakers that the “one size fits all” approach of mandatory sentencing produces vast injustices; that the drug war focus on law enforcement too often ignores the need to help people access treatment; and that the dramatically high rates of incarceration for African Americans are a tragedy for our society.
But over the past decade the landscape has shifted. Four years ago, Congress passed legislation reducing the racially disparate sentencing differential between crack cocaine and powder cocaine. Earlier this year, Attorney General Eric Holder announced a significant expansion of the clemency process in order to reduce excessive prison terms for low-level drug offenders. And in two far-reaching decisions, the U.S. Supreme Court has found aspects of life without parole sentences for juveniles to be unconstitutional.
The shift has been even more dramatic in the states. After nearly four decades of steadily rising imprisonment – a 500% increase since 1972 – prison populations have finally started to decline. More than half the states have scaled back their mandatory sentencing laws. And in 2012, California voters scaled back that state’s draconian “three strikes and you’re out” law, which had resulted in such cases as a third-time offender convicted of stealing $153 worth of videotapes being sentenced to 50 years to life in prison. Although these changes have been modest in magnitude – the nationwide prison count has declined by 4% since its 2009 peak – they represent receptivity to the groundswell for reform.
The common wisdom to explain these changes is that states can no longer afford to operate bloated prison systems. Indeed, at a minimum of $25,000 a year to incarcerate an offender, the $80 billion spent on corrections nationally has cut into funding for higher education and other vital services. But the climate on criminal justice policy began to change before the fiscal crisis set in, emerging from several key factors.
First, crime rates nationally have been declining since the mid-1990s. As a result, crime is now a less salient political issue and few political campaigns today feature the type of “get tough” rhetoric that was all too common in past decades. Americans have also became increasingly skeptical of a “war on drugs” that led to a half million people behind bars for a drug offense, while shortchanging prevention and treatment initiatives. As a result we’ve seen a broad expansion of diversion programs that provide treatment, rather than incarceration, as a means of handling cases in which substance abuse is the key underlying issue.
The policy of “reentry” made its emergence in the late 1990s, with the commonsense notion that it’s in everyone’s interest for people coming home from prison to be equipped with the skills and support they need in order to become contributing members of their communities. This led Congress to pass the Second Chance Act and provide funding to help people find jobs and housing after release from prison.
Opportunities are now on the horizon to undertake even more substantial reforms. The bipartisan Smarter Sentencing Act, which would reduce excessively lengthy mandatory drug penalties, passed the Senate Judiciary Committee and now awaits action by the full Senate. While some “tough on crime” stalwarts have speculated that such changes would increase crime rates, a recent report by the National Research Council concluded that “lengthy prison sentences are ineffective as a crime control measure.”
In order to achieve a better balance in our approach to public safety we need to focus on three areas. First, we should reverse the course of the drug war by shifting to a model of prevention that relies more on the public health system than the criminal justice system. Second, we should scale back the length of prison terms across the board, even for more serious crimes. The 18-year-old convicted of aiding in a robbery is likely to be a very different person at the age of 40, and not necessarily a threat to public safety. And finally, we must recognize that public safety is best enhanced by creating opportunity.
We’ve tried decades of punishment, and now lead the world in that regard. We would do better to strive to lead the world in creating strong families and communities.
Marc Mauer is the executive director of The Sentencing Project and the author of "Race to Incarcerate."