It's Time to Discuss Criminal Justice Reform

September 5, 2012

By Vanita Gupta, Center for Justice & Ezekiel Edwards, ACLU Criminal Law Reform Project at 2:51pm

This piece was originally posted as a part of the Huffington Post Shadow Conventions 2012, a series spotlighting three issues that are not being discussed at the national GOP and Democratic conventions: The Drug War, Poverty in America, and Money in Politics.

Presidential election season is prime time for predictions. One sure bet is this: neither candidate is likely to make criminal justice a stump issue. But another sure bet -- the candidates' laser focus on the economy -- should make a discussion of criminal justice reform, and its potential to reduce fiscal waste, unavoidable.

Rarely has the intersection of politics and criminal justice produced sensible responses to crime or rational conversations about our criminal justice system. Instead, politicians spar about who is "tougher or softer on crime." See Willie Horton and the 1988 election. Since President Richard Nixon first announced the "War on Drugs" 40 years ago, the United States has adopted "tough on crime" policies driven all too often by political and emotional considerations at the expense of data-driven practices and programs that would have been far less costly and far more effective at promoting the health, safety and productivity of families and communities across the country. As a result, between 1970 and 2010 the number of people incarcerated in this country grew by 700 percent. This massive explosion in our prison population has caused federal and state governments to dramatically escalate their spending on corrections. States have been spending an ever-increasing percentage of their budgets on prison-related expenses, cutting into scarce taxpayer dollars while coming at a great expense. By 2007, states spent more than $44 billion on incarceration -- a 127 percent jump from 1987.

The effects? Mass incarceration has had a particularly devastating effect on communities of color. One in every nine black men between the ages of 20 and 34 is incarcerated, and one in three black men, and one in six Latino men, will spend some part of their lives in prison. After 40 million arrests and $1 trillion spent, drugs remain readily available, overall usage rates in America haven't declined, global consumption of opiates, cocaine, and cannabis increased between 1998 and 2008, and drug-related violence has only increased in many Latin American countries. No other state-sponsored program has a 1/3 to 2/3 failure rate as exemplified by recidivism rates and yet been perpetuated by the government with such gusto. Polls show the public agrees: in a survey of more than 1,000 Americans, 66 percent think the War on Drugs has been a failure.

Today, however, as states struggle with budget shortfalls of historic proportions, a growing number of them are rethinking their decades-long obsession with incarceration. For the first time in forty years, conservative leaders and think tanks are talking about taking smarter, rather than tougher, approaches to crime, and touting reform legislation that promotes alternatives to incarceration and expansion of parole eligibility for a host of offenses. Recent bipartisan reform efforts in several states are demonstrating that there are alternatives to mass incarceration that keep communities safe and that make much more sense for taxpayers in these cash-strapped times:

• New York: Depopulated its prisons by 20 percent from 1999 to 2009 as a result of reform of the state's draconian Rockefeller drug laws, expansion of "alternative to incarceration" programs including the diversion of more drug offenders to treatment and drug courts, and applied "merit time" credits to speed up parole consideration. In FY11, New York prison closures saved tax payers72 million.

• Michigan: Depopulated its prisons by 12 percent by eliminating most mandatory minimum sentences for drug offenses; enacted a statewide initiative to reduce parole revocations and enhance employment, housing and treatment services for people leaving prison.

• Texas: Since 2003, the Texas Legislature has passed a number of bills to prevent further growth of its prison population by increasing the use of probation for nonviolent offenses, and by providing increased funding for nonviolent offenders to attend residential and nonresidential treatment programs.

• Mississippi: Reformed its "truth in sentencing" law requiring offenders to serve 85 percent of their sentences before becoming eligible for parole to allow nonviolent offenders to be parole-eligible after having served 25 percent of their sentences.

Crimes rates have remained down in all of these states. If states as diverse as Texas, New York, Mississippi, Michigan, and New Jersey can engage in rational criminal justice reform, other states can follow suit and the federal government can take note.

Obama and Romney should support smart, data-driven legislative and administrative reforms that help states and the federal government reduce their incarcerated populations and corrections budgets, while keeping our communities safe. These reforms will end wasteful spending and reform ineffective government policies, and that should be something all presidential candidates can come together on. These reforms include "front-end" reforms that focus on reducing the number of people entering jails and prisons, as well as reintroducing proportionality and judicial discretion into sentencing; and "back-end" reforms that increase the number of people exiting and staying out of prison. Below are just a sampling of smart reforms:

• Reduce Penalties for Drug Offenses. A quarter of the people in state and federal prisons are incarcerated for drug offenses. In 2009 alone nearly 1.7 million people were arrested in the U.S. for nonviolent drug charges. Marijuana arrests comprise more than half of all drug arrests in the United States, and nearly 90 percent of those are charges of possession only. Arrest and incarceration are not a proper solution to drug offenses; prison does not treat addiction and often makes individuals more prone to drug use.

• Decriminalize/"Defelonize" Drug Possession. States should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.

• Eliminate Mandatory Minimum Sentences. These laws often require disproportionate mandatory minimum prison sentence lengths for offenses, particularly drug offenses. Those committing drug offenses often pose very little risk to public safety and incarcerating them prevents them from receiving treatment and rehabilitation, which would enable them to return to society.

• Use Non-Prison Alternatives for Technical Parole and Probation Violations. Over one-third of prison admissions in this country are for individuals who have committed technical parole and probation violations -- such as missing a parole meeting or failing to perform community service -- not because they committed new crimes. States should implement non-prison alternatives for technical parole and probation violations and can provide performance-based financial incentives to counties to encourage reductions in revocations due to violations.

Presidential candidates love to talk about stopping wasteful spending and saving the economy. The need for financial austerity has created an unprecedented opening for advocates to promote fair and more effective criminal justice policies that protect public safety, reduce recidivism, keep communities intact, and move away from our overreliance on incarceration, all while saving taxpayer dollars. It's time to stop gambling away taxpayer dollars on the failed drug war and start implementing rational, evidence-based, cost-effective, humane criminal justice policies.

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