Bipartisan Prison Reform is Decades in the Making — and Its Time Has Come

It is not exactly a secret that the U.S has way too many people in prison. Despite being the self-proclaimed leader of the free world, we are known to imprison more of our fellow citizens than any other country on earth. 0.716% of Americans, every 7 among 1000 of us, are incarcerated. True, authoritarian regimes like China tend to fudge statistics and detain citizens anonymously, but even if Americans' slammer, which currently houses more than two million people, is actually the second or third largest in the world, it is still a dishonorable record. 

Last week, this elephant in the room got so enormous that the Justice Department, which employs the very attorneys whose job consists of locking up individuals, complained to the U.S. Sentencing Commission, the arm of the judicial branch handing out sentencing guidelines, that if nothing is done about prison overcrowding, resources to retain FBI agents and prosecutors themselves are going to dry up. An official from the department wrote the grim words, "Control federal prison spending or see significant reductions in the resources available for all non-prison criminal justice areas."

One factor driving up over-incarceration is mandatory minimum sentencing laws, which compel judges to sentence convicts to a prison term equal or higher than a fixed term, typically 10 or 20 years or even life imprisonment. The regular use of such laws began with the 1986 Anti-Drug Abuse Act. In addition, in 1984 Congress got rid of parole on the federal level, making prisoners staying in jail longer.

No branch of the our current federal government was exactly in the dark about the need for reform in our penal system before DOJ's warnings. In 2009, President Obama signed legislation mandating the Sentencing Commission to review mandatory minimums. The commission's 2011 report admits that mandatory minimums are too broad and stiff. But at that time, the commission's recommendations to Congress were far too inadequate to put a dent in the prison population. In drug sentencing it only called for "marginally" increasing judges' ability to impose lower sentences than what the law otherwise stipulates, underestimating the instrumental role of federal drug laws in over-incarceration. In other areas, it recommended more flexibility in sentencing for gun crimes and suggested a review of sentencing practices for sex crimes. The American Bar Association, along with ACLU and many other concerned groups, support scraping mandatory minimums altogether. Hopefully after the Justice Department's loud cry for help, the commission will be more emphatic and forceful in carrying the mantle of reform. 

Little could be done without congressional action, however. In March, Sen. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) sponsored a bill to give judges more room to consider sentences lower than the mandatory minimums, and subsequently the House version was introduced by a bipartisan team of members. It was supported vocally by a group of prominent judges and law enforcement officials, including former FBI Director William Sessions. Yet, unfortunately Obama has not come out to endorse the bill. The Congressional Research Service also joined the choir this year, recommending restoring the federal parole.

True reform will only come when all the disparate forces and voices pushing for it coalesce together to bring out lasting policy changes — changes that require both the hatchet and the scalpel, both a general reduction of prison terms for the incarcerated who can be rehabilitated, thus repealing mandatory minimums, and the abolition of certain victimless crimes, which would include exiting the War on Drugs. A few years ago, the momentum for reform was at its height when Sen. Jim Webb (D-Va.) introduced a bill that would establish a national commission to overhaul the entire justice system, only to have it scuttled by Republicans. This time, when the greater tide is against government over-spending, prison spending can no longer be the holy cow and very few influential voices are present to publicly oppose reform. Even many conservatives are supporting reform with the new Right on Crime initiative. What remains to be seen is whether effective coordination can be wrought to make things happen. Otherwise it could well end up like the endeavor to prevent student loan rates from doubling — both parties said they oppose doubling of rates yet let it come.

The time for change is now. The people behind bars for too long and their families cannot wait. The taxpayers, who are tired of seeing their hard-earned money going down the drain, cannot wait. And America cannot wait. While federal actions have been slow to come, states have taken the lead. One of them was South Carolina, where then-Governor Mark Sanford championed and signed into law a comprehensive reform package in 2010 to implement more parole and probation in lieu of imprisonment, and improve prisoners' transition back to society upon release to reduce recidivism.