Some cracks are starting to appear in the edifice of the US prison state. The process of reform is just beginning, and there is a very long way to go. But recent shifts portend good things for human liberty.
In July, President Obama became the first US president to visit a federal prison. His goal was to demonstrate genuine concern about a serious problem. Yes, this is to his credit, but it does cause me to wonder why he should have been the first. If your job is to execute the laws of a nation, it makes sense that you should have some curiosity about the fate of those who don’t comply.
Still, it’s progress. He looked inside their cells. He observed the overcrowded conditions. He sat down with some inmates. He said under his breath, with some sincerity, “there but for the grace of God...”
That is indeed true, given that he has admitted to using both pot and cocaine in the past. He was lucky. Vast numbers behind bars today were not.
A few days earlier, Obama granted clemency to 46 non-violent drug offenders, and then released a video on the topic. “These men and women were not hardened criminals,” he said, “so their punishments didn’t fit the crime.”
He has to date granted more clemency than the last four presidents combined. And he has combined these actions with a series of talks and interviews on the subject of prison and sentencing reform.
It’s Politics, But Good Politics
Politics is such theater. It’s hard to know what’s real and what’s not. But at that moment of the prison visit, millions of people, of all political persuasions, hoped that there was something serious going on.
Perhaps after having made such a mess of health care, foreign policy, civil liberties, and countless other areas, maybe there is some good the Obama administration could do here, in the land that houses one quarter of the world’s inmates.
Maybe, just maybe, the last days of his presidency will not be an entire waste. Maybe the administration can make some progress in rolling back some aspects of the terrifying prison/police state that has seen an unchecked rise for the last twenty years or so.
And we are starting to see some real change. The Bureau of Prisons and the United States Sentencing Commission has changed some rules that are resulting in a much-welcome change in drug sentencing guidelines.
The result will be the largest-ever prison release — which is not as impressive when you consider the sheer vastness of the prison nation. Still, later this month, more than 6,000 small-time offenders, who had received maximum prison sentences under a zero tolerance policy, will be released from prison.
And that really is something to celebrate.
Reason magazine summarizes:
The commission estimated that about 70 percent of future drug defendants would benefit from the change, with an average sentence reduction of 11 months.
And because it voted three months later to make the amendment retroactive, an estimated 46,000 current inmates — nearly half of all the drug offenders in federal prison — became eligible for resentencing, with an average sentence reduction of 25 months.
Given that we are talking about non-violent crimes, this is not exactly justice. But it is a huge improvement. The symbolism here is huge. It’s a state actually changing a policy, admitting a failure. Instead of doubling down, we are seeing policy starting to move in the other direction, for the first time in many decades.
There’s more. Just as news of the prison release was reported, a new bipartisan group of members of Congress introduced a prison reform bill. There was rejoicing all around.
It stands a real chance of passage. The bill is modest, but the propaganda here matters: when politicians widely exaggerate the revolutionary nature of what they are passing, you know they are facing intense pressure.
It’s about time.
The Last Days of the Prison State?
The larger context here is crucial. The love affair Americans had with the prison state back in the 1980s is long since over. Back in those days, there was no such thing as too many cops or too much incarceration. All security issues were compliance issues, and the answer was always the same: the fearless application of more brute force.
Times have changed. Too many sons and daughters have tangled with the cops, found themselves on the wrong side of the law, and been fined to bankruptcy by gun-backed revenue extraction. The system has indeed become merciless, and the problems it sought to fix became worse.
There are 65 million Americans with some kind of criminal record — six million with felony convictions. There are more people living in prison (2.22 million) than in Houston, Texas (2.19 million). Counting the 4.7 million on probation or parole, the prison state is America's 14th largest, just between Massachusetts and Washington.
Today, there are more people in for drug offenses than were incarcerated as a whole in 1980. Even now, and despite the legalization push, someone in the US is arrested every minute for some pot-related offense. What is big business, conducted peacefully for mutual benefit in one community, is penalized and punished harshly in the next community over, with the arrested facing decades in prison.
Led by the drug war, and police militarization, a system of police, courts, and prisons that most people in the past regarded as contributing to security has itself become a threat to security. No American sees the flashing blue lights in her rear-view mirror and thinks: oh good, here comes someone to protect me.
The power of any state is instantiated by its willingness to use guns and jails. People can talk about policy “nudges” all they want, but coercion — over property but ultimately over lives — is what it all comes down to. A law means nothing without the gun and cage. And the jailers have to be willing to use any element of force, including death, to put people in.
The result has been the worst form of big government, and even a human-rights disaster. Prison is uncreative, disregarding of human rights, ghastly expensive for taxpayers, unworkable, and doesn’t really advance the cause of justice. Surely there are better ways. Reform repairs the path to find out what they are.
Changing this is a practical and moral necessity. It’s far too early to declare victory, but in a world in which steps in the right direction are too rare (and always too late), the changing ethos on prison is worthy of celebration.
May this be just the beginning.