By Laura Vincent
We are at a time in our history where American society can no longer turn a blind eye to the alarming state of the criminal justice system. Recent tragic events have forced attention to focus on police brutality, inadequate prison conditions, status of “mass incarnation,” and all of its costs on taxpayers, communities, and human dignity.[1] Rates of incarceration began to increase after our country shifted toward punitive measures with the implementation of “supermax” facilities,[2] mandatory sentencing, and three-strikes laws.[3] Other “tough on crime” policies were put in place in the 80’s, as a response to a spike in crack cocaine sale and its associated violence.[4] Three decades of such policies has resulted in a 400 percent increase in the rate of incarceration[5] and over 2.4 million Americans currently in prison.[6] The United States is the world leader in this category as one in five of the world’s prisoners are housed here, but our country only comprises five percent of the global population.[7] Additionally, there are alarming rates of racial disparity seen in the system. African Americans and Latinos make up only about 30 percent of the general population but they comprise 60 percent of the inmate population.[8]
Recognition that this punitive system is inherently unjust has pushed criminal justice reform to the forefront of political concern and efforts to take a harder look at the system have gained bipartisan support.[9] On October 22, 2015, the Senate Judiciary Committee passing The Sentencing Reform and Corrections Act of 2015 (Act).[10] Officials have learned that they “cannot imprison [their] way to safety,” and the bill makes “important strides to address the most egregious mandatory minimum sentences for low-level drug offenders.”[11] The Act sets forth measures that will reduce mandatory sentence requirements for certain types of offenses, sets up minimum sentencing for certain types of offenses, requires recidivism reduction programming, and creates programs for support after release.[12] While these changes will only apply to prisoners being held in federal facilities, its proposed retroactive nature alone would apply to over 6,500 people.[13] It not only reduces the base maximum sentencing, but it also allows for greater judicial discretion in sentencing determinations.[14] However, the Act does create minimum sentencing requirements for interstate domestic violence and providing terrorists with defense materials.[15]
It is rare that popular and political interests align and move Congress. Capitalizing on bipartisan momentum is important, as interest could fade and the opportunity could slip away.[16] This is what happened in 2007, when the Employment Non-Discrimination Act (ENDA) hit Congress at a time when the LGBT community had popular and political support. The legislation was meant to create protections against employment discrimination based on sexual orientation. It passed the House and nearly passed in the Senate, losing in a 49-50 vote only because of the transgendered community’s withdrawal of support; but subsequent attempts to introduce the bill have proven unfruitful.[17]
Even with all of its support, the Act does cause concern for some and its passage is time critical. With presidential and bipartisan support for criminal justice reform, it is likely that this bill will pass in the Senate.[18] Congressman Bob Goodlatte has introduced a companion legislation, and it was passed through the House Judiciary Committee on November 16, 2015.[19] However, the upcoming federal election year threatens to cause reform to stall and potentially to cease.[20] It is inevitable that candidates will begin to litter the elections with political jargon on various hot button issues. It is anticipated that Republican candidates will use fear mongering by supposing that any level of criminal justice reform will lead to a rise in the crime rate.[21] If the Act does not pass before campaign season there is a chance it may share the same unfortunate fate as ENDA. The question then turns on whether or not the bill has enough support to move swiftly through Congress.
Some accuse the Act of not going far enough. The biggest shortcoming of the bill seems to be its soft attack on mandatory minimums.[22] While the Act does reduce mandatory sentences for some non-violent crimes, it creates mandatory minimums for domestic violence and terrorist activities. Evidence shows that having a mandatory minimum sentencing policy is costly, it leads to over incarceration, and it does not keep us safe; ideally such a policy should be eliminated completely.[23] To truly reduce incarceration rates, we need to find a smarter way to sentence violent offenders, as they eventually age out of aggressive tendencies.[24] Furthermore, the legislation fails to address two major issues plaguing criminal justice reformers: (1) reform focusing on police accountability and (2) reform of re-entry support programs to reduce recidivism.[25]
Some reformers argue that if the bill passes, it will mean the end of criminal justice reform for several years. Those who make such an argument fear that this bill will be declared a success, and then Congress will move on and movement will not be seen again for several years, leaving many undeserving prisoners stuck behind bars.[26] This is similar to the argument opposing the 2007 draft of ENDA. The drafters dropped discrimination protections for “gender identity,” resulting in the transgender community denouncing its support of the bill and rallying several democrats to vote against the bill’s passage.[27] While, ENDA has been initiated since, with a protection for gender identity, it has never had as much support as it did in 2007.[28] This “all or nothing” approach promotes the ideology that reformers should only support full reform. The fear is that failing to do so when congressional pressure is high means losing the opportunity to pass the most progressive legislation and lets Congress off the hook, stopping it in its tracks.[29]
On the opposite side, are those who are skeptical of any criminal justice reform. They believe that our incarceration rate is due to a highly effective system resulting in a safer society.[30] Most opposed to criminal justice reform believe that there is no way to simultaneously decrease the incarceration rate and the crime rate.[31] Prosecutors are not in favor of the reduction of mandatory sentences for two reasons. One, reduced mandatory minimums will take away their bargaining power in plea deals.[32] Two, many people plea down and as a result their violent crimes are off the record, so during the retroactive application of these changes judges will not be able to properly assess their potential danger.[33] This will ultimately mean an increase in crime and recidivism rates. Finally, there is concern over defining drug dealers as “non-violent” offenders and giving them reduced minimum sentences because drugs kill people every day.[34]
The vast majority see the bill as great progress, commonly referring to it as a major breakthrough.[35] Many applaud the Act for its retroactive application. Notably, the Fair Sentencing Act would now apply retroactively; resentencing those convicted of crimes involving crack cocaine who received longer sentences than those convicted of other drug crimes.[36] The bill is also being praised for mandating parole for juveniles who were tried as adults and who would otherwise be mandated to receive life sentences,[37] for the creation of rehabilitation and drug treatment programs that reward graduates with early release credit,[38] and for the release of terminally ill and elderly inmates with no violent record. [39]
While advocacy groups agree that the Act is not everything they want, it is a great start, and more than they expected.[40] Their argument is similar to that of the supporters of the transexclusion in the 2007 ENDA bill. Reform comes in steps, sacrifice of the ideal must be made, and champion your best bet, not a bill that lacks the wherewithal to pass in Congress.[41] While some are not covered now, it does not mean that reform will not extend to them in the near future. This was seen in an ironic way with ENDA, as claimants are having success under Title VII for gender identity and gender non-conformity discrimination in employment, while there is no remedy under Title VII for discrimination because of sexual-orientation.[42] In the end, it is most important to remember the real lives the Act will effect and the real difference such a law would make for their families.[43]
The ultimate goal might be the elimination of mandatory sentences, but Families Against Mandatory Minimums’ president, Julie Steward, believes it to be the “most significant form of legislation in a generation.”[44] Advocates appreciate the breadth of reform that the bill is set to deliver, especially considering Senator Chuck Grassley’s participation, as he helped write the mandatory sentencing legislation that will be drastically scaled back.[45] Ultimately, it is understood that this may just be the best that can be done, but it is only a starting point.[46] Reformers also disagree that there is a concern that crime will increase as “one study by the U.S. Sentencing Commission of crack cocaine offenders found that prisoners released early have not tended to have higher re-arrest rates than those who serve their full term.”[47]
[1] Gabrielle Levy, Criminal Justice Reform Bill Hailed as Bipartisan Breakthrough, U.S. News & World Report (Oct. 1, 2015, 6:05 PM), https://www.usnews.com/news/articles/2015/10/01/senates-criminal-justice-reform-bill-hailed-as-bipartisan-breakthrough; Bill Keller, Congress Prepares to Deliver (a Little) Criminal Justice Reform, The Marshall Project (Oct. 21, 2015, 7:15 AM), https://www.themarshallproject.org/2015/10/21/congress-prepares-to-deliver-a-little-criminal-justice-reform.
[2] Michelle S. Phelps, Rehabilitation in the Punitive Era: The Gap Between Rhetoric and Reality in U.S. Prison Programs, 45 Law & Soc’y Rev. 33, 34 (2011).
[3] Marc Mauer & Michael Coyle, The Social Cost of America’s Race to Incarcerate, 23 J. of Religion & Spirituality in Soc. Work: Soc. Thought, 7, 11-12 (Oct. 2004).
[4] Levy, supra note 1.
[5] Id.
[6] Grace Wyler, The Mass Incarceration Problem In America, Vice News, (July 26, 2014, 9:05 AM), https://news.vice.com/article/the-mass-incarceration-problem-in-america.
[7] Levy, supra note 1.
[8] Nick Chiles, America Nears Sweeping Reform of a Criminal Justice System that Has Decimated Black Communities, Indianapolis Recorder Newspaper (Nov. 4, 2015, 10:18 AM), https://www.indianapolisrecorder.com/news/article_4662e56e-8307-11e5-b9b6-f7a4e6d632c2.html.
[9] Levy, supra note 1.
[10] Mike Riggs, Senate Judiciary Committee Approves the Sentencing Reform and Corrections Act, FAMM (Oct. 22, 2015), https://famm.org/senate-judiciary-committee-approves-the-sentencing-reform-and-corrections-act/.
[11] Levy, supra note 1 (quoting Wade Henderson, president of the Leadership Conference on Civil and Human Rights).
[12] Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. (2015); See also Russell Berman, Can the Senate Reform Criminal Justice?, The Atlantic (Oct. 2, 2015), https://www.theatlantic.com/politics/archive/2015/10/will-criminal-justice-actually-be-reformed/408538/; Riggs, supra note 10.
[13] Carrie Johnson, Here’s One Thing Washington Agreed On This Week: Sentencing Reform, NPR (Oct. 3, 2015, 11:01 PM), https://www.npr.org/sections/itsallpolitics/2015/10/03/445309516/heres-1-thing-washington-agreed-on-this-week-sentencing-reform.
[14] Chiles, supra note 8.
[15] Casey Harber, Law Enforcement Critical of Senate Sentencing Reform Bill, Daily Caller News Found. (Oct. 19, 2015, 5:16 PM), https://dailycaller.com/2015/10/19/law-enforcement-we-dont-want-senate-sentencing-reform-bill/#ixzz3rIqctvhm.
[16] Van Jones, Pass a Justice Bill as Big as this Moment, CNN (Nov. 3, 2015, 5:55 PM), https://www.cnn.com/2015/11/03/opinions/jones-four-fixes-criminal-justice/.
[17] William C. Sung, Note, Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity, 84 S. Cal. L. Rev. 487, 498-502 (Jan. 2011).
[18] Berman, supra note 12.
[19] Kelly Cohen, House Judiciary Committee Oks Sentencing Reform Act, Wash. Exam’r (Nov. 18, 2015, 12:22 PM), https://www.washingtonexaminer.com/house-judiciary-committee-oks-sentencing-reform-act/article/2576647.
[20] Nick Pinto, Why Can’t We End Mass Incarceration, Rolling Stone (Oct. 26, 2015), https://www.rollingstone.com/politics/news/why-cant-we-end-mass-incarceration-20151026#ixzz3rIkTKRpl.
[21] Maurice Chammah, The Dissenters, The Marshall Project (Nov. 6, 2015, 12:03 PM), https://www.themarshallproject.org/2015/11/06/the-dissenters#.pXRI2NW5a. Pinto, supra note 21.
[22] Pinto, supra note 21.
[23] Jones, supra note 16.
[24] Johnson, supra note 13; Levy, supra note 1.
[25] Jones, supra note 16.
[26] Keller, supra note 1.
[27] Sung, supra note 17, at 504-05.
[28] Alex Read, A Pro-Trans Argument for a Transexclusive Employment Non-Discrimination Act, 50 Am. Bus. L.J. 835, 835-36 (Winter 2013).
[29] Keller, supra note 1.
[30] Harber, supra note 15.
[31] Chammah, supra note 22;
[32] Id.
[33] Id.
[34] Johnson, supra note 13.
[35] Levy, supra note 1.
[36] Pinto, supra note 21.
[37] Id.
[38] Johnson, supra note 13.
[39] Pinto, supra note 21.
[40] Johnson, supra note 13; Jones, supra note 16; Pinto, supra note 21.
[41] Read, supra note 29, at 874.
[42] Sung, supra note 17.
[43] Pinto, supra note 21.
[44] Mike Riggs & Molly Gill, FAMM Praises Senate Sentencing Reform Compromise, Call Mandatory Sentencing Reforms Long Overdue, FAMM (Oct. 1, 2015), https://famm.org/famm-praises-senate-sentencing-reform-compromise-calls-mandatory-sentencing-reforms-long-overdue/.
[45] Berman, supra note 12; Chiles, supra note 8; Johnson, supra note 13.
[46] Johnson, supra note 13.
[47] Chammah, supra note 22.