To Reform Federal Prisons, Reform Federal Sentencing Laws

Three weeks ago, I directed the Federal Bureau of Prisons to phase out the use of privately operated prisons.  The decision was motivated by a number of factors, including growing concerns about safety, services, and cost savings, but we were able to act now for one simple reason:  the declining federal inmate population.  To make even more significant changes within our federal prison system, Congress needs to pass sentencing reform legislation.  Only by further reducing the population size can the Bureau of Prisons fully achieve its rehabilitative mission. 

It’s helpful to understand the background.  As most people know, starting in the mid-1980s, Congress passed a series of laws that imposed harsh mandatory minimum sentences for drug crimes.  Drafted at the height of the crack epidemic, the length of these mandatory minimum sentences was determined primarily by the weight of the drugs involved, often to the exclusion of every other factor, including the dangerousness of the offender.  With little ability to differentiate between a cartel boss and a street-level courier, judges sentenced large numbers of drug defendants to draconian prison terms, and our federal prisons quickly began to fill.  Between 1980 and 2013, the federal inmate population increased by nearly 800 percent, from fewer than 25,000 inmates to nearly 220,000. More broadly, the lack of proportionality in these drug sentences caused many Americans to question the fundamental fairness of our criminal justice system.

The exploding prison population transformed DOJ’s operations.  By the early 2000s, the Bureau of Prisons accounted for about a quarter of the Justice Department budget, often costing as much or more than the entire Federal Bureau of Investigation.  Every dollar the Department spent on housing a non-violent drug offender for longer than necessary was a dollar unavailable for investigation, prosecution, prevention, and aid to state and local law enforcement.    

But even the billions taxpayers poured into BOP weren’t enough:  federal prisons filled with inmates faster than Congress funded the construction of new facilities or the hiring of new correctional officers.  Stretched thin, BOP was forced to reassign staff from crucial rehabilitative and educational services to more traditional patrol duties.  Eventually, the inmate population became too large for BOP to handle on its own, and the agency turned to private contract facilities to share the burden.

The trend toward larger federal prison populations began to reverse in 2013.  That summer, former Attorney General Eric Holder announced DOJ’s “Smart on Crime” initiative, with federal prosecutors instructed to stop seeking mandatory minimum sentences for certain lower-level, non-violent drug offenders.  Around the same time, DOJ embraced a number of other efforts, including the ongoing clemency initiative, to address unnecessarily long drug sentences.   Now, three years later, the federal prison population has decreased by more than 10 percent, or approximately 25,000 inmates, from its 2013 peak.  The early data suggest that federal prosecutors are being more selective in bringing cases and reserving the most serious charges for the most serious offenders.  The fear that these policy changes would result in fewer cooperating defendants or guilty pleas has proved unfounded.

But there’s more to be done, and we at the Justice Department can’t do it without Congress.  Many BOP facilities are still over capacity, especially high- and medium-security prisons.  We are phasing out private prisons, which did not provide high-quality recidivism reduction programs, such as education, job training, and reentry assistance, but even the best of these services at BOP facilities are resource-starved despite impressive returns on the public’s investment.

The importance of these rehabilitative efforts cannot be overstated.  Reentry initiatives are proven to work, with some reducing recidivism by a third or more.  That’s a third fewer victims of repeat offenders, a third fewer kids traumatized by a parent returning to prison.  These efforts show the American people that we’re serious about making our criminal justice system work.  But that sort of smart investment cannot be made at an overcrowded facility, and Congress has not shown the willingness to dedicate significantly more resources to the rehabilitation of federal prisoners. 

There is, however, real, rare, bipartisan enthusiasm for sentencing reform.  With Congress returning from recess this week, we can’t let the opportunity slip by.  Six years ago, Congress took a first step, reducing the sentencing disparity between crack and powder cocaine offenses, but what we need now is comprehensive reform.  By passing legislation now, we would strengthen confidence in our system of justice—not only by ensuring the punishment fits the crime, but also by freeing the Bureau of Prisons from the burdens of an earlier era.  It won’t be easy, but together, Congress and the Justice Department can make sure that federal prisons are not warehouses for the forgotten but instead engines of growth and change for the ninety-five percent of prisoners who will eventually leave custody and return to the communities from which they came.  The public’s safety—and the public’s trust—depend on it. 

 

CONVERSATIONS