Why Can’t We End Mass Incarceration?
On October 6th, news reports heralded a historic development: The world’s largest incarcerator, the United States of America, was about to make the largest one-time release of prisoners in its history. The U.S. Justice Department announced that it would be releasing some 6,000 inmates from federal prisons before the end of their original sentences. It’s the first wave of an even larger number of early releases — more than 13,000 in total. The news was trumpeted as further evidence that after decades of mandatory-minimum sentences, the pendulum of public policy has finally begun to swing back the other way.
But though the news was much hyped in the press, a close look shows just how difficult substantial change in sentencing policy continues to be. For one thing, the announced releases represent a fraction of the more than 205,000 people in federal prison. And federal prisons are just the tip of the iceberg — factor in state prisons and local jails, and there are 2.2 million people locked up in this country. Moreover, the prisoners released in November won’t owe their freedom to Congress or to President Obama. The largest prisoner release in U.S. history came instead from an organ of government little known outside of criminal-justice policy circles: the U.S. Sentencing Commission. Composed of seven commissioners, appointed by the president and confirmed by Congress, the commission is charged with setting and adjusting the detailed schedule of penalties for those convicted of federal crimes.
In April 2014, the commission approved a reduction in sentences for certain drug crimes going forward. “This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level,” said Judge Patti B. Saris, the commission’s chair. “Reducing the federal-prison population has become urgent.” In July, the commission voted to make those reductions retroactive as well. Prisoners who would have received the lower sentences were eligible to petition judges for early release. Of the more than 17,000 inmates who submitted petitions, a quarter were rejected over fears for public safety.
That the greatest release of federal prisoners in history emanated from a policy tweak by an obscure administrative body says something about just how absent elected officials with far more sweeping powers have been from the reform process. In his final months in office, President Obama has focused more on the need for criminal-justice reform. In the summer, he became the first sitting president to visit a federal prison, and he has used the executive power of clemency to commute some of the most egregiously unfair sentences of 89 federal drug convicts. Under Attorney General Eric Holder, the Justice Department began telling prosecutors that their mandate is not to hit every defendant with the heaviest penalty they can, but rather to seek a nuanced and individualized justice.
But a handful of pardons don’t amount to much when there are hundreds of thousands of federal prisoners, and an attorney general’s directive for prosecutors to show a modicum of restraint isn’t guaranteed to outlast this administration. “All roads to meaningful sentencing reform pass through Congress,” says Julie Stewart, president and founder of Families Against Mandatory Minimums. “If there’s going to be meaningful federal-sentencing reform, it can only come from there. And until recently, Congress hasn’t been interested.”
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