Smarter Going Forward, More Forgiving Looking Back

The term "smarter sentencing" is a funny one. I like that it suggests a predecessor type of sentencing that I imagine could be called "dumber sentencing" (or crueler) that has led us to this.
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The term "smarter sentencing" is a funny one. I like that it suggests a predecessor type of sentencing that I imagine could be called "dumber sentencing" (or crueler) that has led us to this: 2.2 million behind bars, 500,000 of them mentally ill, thousands serving Life Without the Possibility of Parole (LWOP), with 95 percent returning home to diminished rights, all to the tune of $80 billion a year. What I dislike about the term "smarter sentencing" is what this blog is about.

To fix our criminal justice system, it's not enough to be smarter moving forward. We need to look back at those stuck in prison serving the "dumber" sentences, and work retroactively to fix a system gone wild. We have to be more than smart. We have to carve out a space for mercy, redemption and reacceptance that will rectify past sentencing mistakes, while bringing our society closer to true justice in the future.

Today, after a generation of runaway incarceration that saw overall prison populations more than quadruple since 1980 -- with prisons acting as the one-size-fits-all solution for societal ills -- the prisons are overcrowded, punishingly expensive (in human and budgetary terms) and ready for reform. Parole, Pardons and Smarter Sentencing are three drivers of prison sentences where ostensibly we could bring human insight, compassion and wisdom to bear. More than starting anew, it's about bringing those values back after the last 30+ years of rote punishment.


Once a way to reward good behavior, parole was abolished throughout the 1980s, to make way for predetermined "sentencing guidelines." The guidelines took sentencing discretion away from judges, and at the same time, stole the release decisions from parole boards, leaving the system on a kind of inhumane autopilot.

As a filmmaker, I have witnessed firsthand the last vestiges of the parole process through a documentary I recently completed, The Life and Mind of Mark DeFriest, about a Florida prisoner with documented mental illness whose sentences are all parole-eligible, having been handed down prior to 1983 (the year Florida abolished parole). In the mid-80s, the average Florida inmate did 53 percent of their sentence, but now prisoners do 85 percent or more, regardless of behavior or improvement. The effect is that actual time served across all crimes has increased by 150 percent from 1988 to 2004, while the prison population has exploded.

Ironically, Mark DeFriest would have been out years ago under Florida's new sentencing guidelines, but he remains imprisoned by three decades of parole decisions that punished any disciplinary problems with extended time, ignoring what the prison system had become to Mark and thousands like him: "The New Asylums" (to borrow a title from a PBS documentary about the phenomenon) and our nation's de facto drug treatment infrastructure. Rather than adapting to that "dumber" reality of mentally ill and drug-addicted prisoners, the parole system perpetuates the problem by ignoring mitigating factors. With nationwide reform, parole systems could proactively shape release plans for inmates that could function in society with the benefit of mental health care or community treatment, taking cues from wraparound programs like mental health courts. Instead, parole is harder to come by with each passing year, with a dwindling 'parole-eligible' pool and a political system that still sees many worthy candidates as untouchable risks.


Once a check on long sentences that rewarded good behavior or rectified disproportionate punishment, pardons have become rare even compared to President Eisenhower's times. Yet there's good news: President Obama, the paltriest pardoner of all modern Presidents according to ProPublica, has decided to initiate a process that will should lead to hundreds or even thousands of pardons for nonviolent Federal drug offenders. Obama's move, while important and meaningful, only touches on a subset of the prison population, and does not bring a comprehensive review of sentences across the country. It points the way, but given recent political backlash to pardons, there are no guarantees that the pardoning mentality will be politically viable.

That's why the public matters. Justice Kennedy, who has led recent Supreme Court decisions on a fairer prison system, gave a speech where he placed the responsibility for prisons on all citizens:

"The subject of prisons and corrections may tempt some of you to tune out. In my submission you have the duty to stay tuned in. The subject is the concern and responsibility of ...every citizen. This is your justice system; these are your prisons."

Smarter Sentencing + Retroactive Solutions

What can we do with our prisons? When 51 percent of federal prisoners are nonviolent drug offenders, we should push for policy changes. It's time for reforms like the Smarter Sentencing Act, which would rollback the mandatory minimums that have bloated the federalprisons. It has bipartisan support in Congress and from the President, and stands a good chance of passing if we push it. Beyond the federal level, in every state, we should advocate similar reforms around sentencing, pardons and parole.

We are finally coming out of a "law and order" era like none other in our nation's history. Positive signs abound, but for me and a prisoner I've known for 13 years, the limits to this progress will be tested this Summer, when Mark DeFriest will come up for parole again. A journeyman prisoner who has spent 34 years in prison, yet never physically harmed another person, Mark's infamy as an escape artist and disciplinary problem are what keep him caged. At 54, and on his best behavior for years, the question will be whether his efforts to redeem himself will be recognized by a more forgiving Parole Commission.

For Mark, and the thousands -- if not millions -- of others serving exaggerated sentences like him, the question remains: is redemption still possible?

This blog post is part of a series produced by The Huffington Post and Charlotte Street Films in support of the Smarter Sentencing Act, which aims to reduce excessive sentencing for those convicted of drug-related crimes. To watch a video supporting the bill, watch here. To support the bill, read here. To see all the other posts in the series, read here.

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