Why Can't We End Mass Incarceration?

Lawmakers on both sides of the aisle agree that Draconian mandatory-minimum sentences have to go — so why is it so hard to pass a bill that will actually make a difference?

The U.S. federal-prison population swelled from 24,000 prisoners in 1980 to 219,000 in 2013. Credit: Illustration by Victor Juhasz

On October 6th, news reports heralded a historic development: The world's largest incarcerator, the United States of America, was about to make the largest one-time release of prisoners in its history. The U.S. Justice Department announced that it would be releasing some 6,000 inmates from federal prisons before the end of their original sentences. It's the first wave of an even larger number of early releases — more than 13,000 in total. The news was trumpeted as further evidence that after decades of mandatory-minimum sentences, the pendulum of public policy has finally begun to swing back the other way.

But though the news was much hyped in the press, a close look shows just how difficult substantial change in sentencing policy continues to be. For one thing, the announced releases represent a fraction of the more than 205,000 people in federal prison. And federal prisons are just the tip of the iceberg — factor in state prisons and local jails, and there are 2.2 million people locked up in this country. Moreover, the prisoners released in November won't owe their freedom to Congress or to President Obama. The largest prisoner release in U.S. history came instead from an organ of government little known outside of criminal-justice policy circles: the U.S. Sentencing Commission. Composed of seven commissioners, appointed by the president and confirmed by Congress, the commission is charged with setting and adjusting the detailed schedule of penalties for those convicted of federal crimes.

In April 2014, the commission approved a reduction in sentences for certain drug crimes going forward. "This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level," said Judge Patti B. Saris, the commission's chair. "Reducing the federal-prison population has become urgent." In July, the commission voted to make those reductions retroactive as well. Prisoners who would have received the lower sentences were eligible to petition judges for early release. Of the more than 17,000 inmates who submitted petitions, a quarter were rejected over fears for public safety.

That the greatest release of federal prisoners in history emanated from a policy tweak by an obscure administrative body says something about just how absent elected officials with far more sweeping powers have been from the reform process. In his final months in office, President Obama has focused more on the need for criminal-justice reform. In the summer, he became the first sitting president to visit a federal prison, and he has used the executive power of clemency to commute some of the most egregiously unfair sentences of 89 federal drug convicts. Under Attorney General Eric Holder, the Justice Department began telling prosecutors that their mandate is not to hit every defendant with the heaviest penalty they can, but rather to seek a nuanced and individualized justice.

But a handful of pardons don't amount to much when there are hundreds of thousands of federal prisoners, and an attorney general's directive for prosecutors to show a modicum of restraint isn't guaranteed to outlast this administration. "All roads to meaningful sentencing reform pass through Congress," says Julie Stewart, president and founder of Families Against Mandatory Minimums. "If there's going to be meaningful federal-sentencing reform, it can only come from there. And until recently, Congress hasn't been interested."

For decades, beginning in the 1980s, members of Congress and senators on both sides of the aisle were very interested in federal sentencing — specifically, in making sentences longer and making it harder for judges to tailor their sentences to the case at hand. As the War on Drugs was kicking into high gear in the Eighties, Congress created a host of new mandatory-minimum penalties. By forcing judges to apply unprecedented harsh sentences, the logic went, mandatory-minimum laws would standardize punishments and offer a strong disincentive to people contemplating committing drug crimes. The rest is history: The federal-prison population swelled from 24,000 prisoners in 1980 to 219,000 in 2013. Nearly half of federal inmates are serving time for drug crimes. Of those, 60 percent were subject to mandatory minimums when they were sentenced.

In recent years, though, popular enthusiasm for the drug war has waned, the astronomical price tag of imprisoning hundreds of thousands of people has shocked even the toughest-on-crime politicians, and a reconsideration of mandatory-minimum sentences and mechanisms of mass incarceration is no longer quite the political third rail that it once was. This sea change is due largely to a shift among Republicans, led by reform-minded groups like Right on Crime and conservative luminaries like Newt Gingrich, Rand Paul and the Koch brothers. "Things that weren't possible a few years ago are suddenly seeming possible," says Stewart, of FAMM. "The reason is that people on the right are coming around."

Some conservative converts to criminal-justice reform realize that locking up so many citizens consumes a stupefying amount of taxpayer dollars. Others feel a religious call. The late Charles Colson, the former special counsel to Richard Nixon, became an evangelical Christian shortly before his own seven-month bid as one of the Watergate Seven, and afterward founded the Prison Fellowship, which touts itself as "the nation's largest outreach to prisoners." As Republican leader in the California Assembly in the 1980s, Patrick Nolan had a strict tough-on-crime position until he found himself in federal prison on corruption charges. "I went in thinking that the system made us safer by helping to change inmates," Nolan says. "I went to prison and saw they were doing very little to change the behavior of these young guys. That was a shock. What have you accomplished other than tearing apart their families, making it harder to employ them, and costing the taxpayers a lot of money?" Nolan now runs the Center for Criminal Justice Reform at the American Conservative Union Foundation, and he has been a major driver of the GOP's embrace of criminal-justice reform. "We've built a movement," he says. "The conservative grassroots care very much about this, and they're in it for the long haul."

The new bipartisan consensus now looks to be finally breaking the logjam on Capitol Hill. On the morning of October 1st, half a dozen of the most powerful Democratic and Republican senators gathered for a news conference to announce new legislation titled "The Sentencing Reform and Corrections Act of 2015." Calling it "the biggest criminal-justice reform in a generation," Senate Judiciary Chairman Chuck Grassley hailed it as a true product of negotiation, containing provisions that each side disliked even as it was agreeable to all.

"The bill certainly doesn't contain everything we might have dreamed of, but there's a lot to like in it," says Jeremy Haile, federal advocacy counsel for the Sentencing Project. The bill requires that juveniles sentenced as adults be eligible for parole. It allows terminally ill and elderly inmates with no violent record to be released from prison. It mandates the Bureau of Prisons to provide inmates with programming shown to reduce recidivism. Some of the bill's biggest impacts concern sentencing reform: It reduces the "three strikes" penalty that saddled three-time drug convicts with life sentences. The bill also finally makes retroactive the reductions contained in the Fair Sentencing Act of 2010, which lowered the patently racist discrepancy between crack and powder-cocaine sentences.

President Obama was clearly pleased to see the legislation and praised the bill as historic: "The broad and impressive bipartisan coalition that created the bill makes me optimistic that members on both sides of the aisle, in both houses, will continue to work together on this critical issue in the coming weeks and months and put a meaningful criminal-justice reform bill on my desk before the end of this year." 

For longtime prison-reform advocates, though, the legislation leaves a lot to be desired. It does nothing to eliminate the institution of mandatory-minimum sentences, the holy grail of sentencing reform, and in fact creates new mandatory-minimum requirements for domestic violence and arms trafficking. Though legislators declined to discuss on the record details of the months-long negotiation process that produced the legislation, it's a safe bet that a major reason the Senate's bill doesn't do more is Sen. Grassley. As chair of the Judiciary Committee, Grassley was in a position to kill any legislation softening mandatory-minimum sentences, and as recently as March, he was publicly committed to doing just that. In a lengthy and emphatic speech on the floor of the Senate, Grassley condemned an earlier iteration of the legislation, decrying the "Orwellian rhetoric" of the "leniency industrial complex." As long as Grassley was Judiciary chair, it seemed, sentencing reform was dead in the water.

But something happened between March and October: Grassley found that his inflexible tough-on-crime posture wasn't playing as well with his constituents as it used to. In April, 130 faith leaders from Grassley's home state of Iowa wrote an open letter to the senator, urging him to reconsider. Just over a week later, an ecumenical trio of Iowa bishops blasted the policy in the pages of The Des Moines Register, and soon after, the paper's editorial board piled on. "This nation's war on drugs focused on criminal punishment instead of treatment [and] has been a complete failure," the board wrote. "At long last there is growing support for changing that. Iowa's senior senator should not stand in the way."

Grassley tells Rolling Stone that he was brought around by studying the experience of states that have embraced prison reforms and seeing that they haven't suffered for doing so. "I've learned from what some states have done, changes could be made and money could be saved and not hurt society with people that do harm coming from behind bars," he says. But Grassley concedes that there was another reason he realized he had to get involved in the process — to keep more dramatic mandatory-minimum reform from carrying the day: "I saw the possibility that mandatory minimums could be cut in half. I thought that was going to be bad. Everything was on the table, but I was against a 50 percent across-the-board reduction."

The negotiations, which had begun last fall, ramped up with Grassley's participation in March. "We had to sit down and start walking through what we were trying to achieve and what he was comfortable with," Sen. Dick Durbin, the Illinois Democrat who was a driving force behind the legislation, tells RS. "It took a year." 

The Senate bill may represent progress, but of course the mere fact of its introduction guarantees nothing. The backing of leaders from both parties would seem to assure that the bill will get out of the Judiciary Committee and to a vote in the Senate this fall without getting cut to ribbons, larded up with extraneous additions or sabotaged with poison-pill amendments. The hard-fought negotiations behind the legislation have produced something approaching unicorn status on Capitol Hill: a substantial bill with bipartisan support. "The fact that they were able to come together and produce a bipartisan bill is a huge development," says Nancy La Vigne, of the Urban Institute's Justice Policy Center. The senators know they're sitting on a rare piece of evidence that the American legislature might not be wholly and irremediably broken.

But the Senate is the easy part. It's in the U.S. House, the seething, clotted epicenter of government dysfunction, that sentencing reform will face its real test. Until recently, the passage of sentencing-reform legislation has been blocked by a GOP Judiciary chairman, Bob Goodlatte of Virginia. "We shouldn't jump to conclusions about what is right and what is wrong with [mandatory-minimum drug sentences] yet," Goodlatte said on C-Span last year.

Last June, when the political odd couple of Virginia Democrat Bobby Scott and Wisconsin Republican Jim Sensenbrenner brought forward the SAFE Justice Act, a sprawling reform bill that explicitly reserved mandatory-minimum drug sentences for kingpins, Goodlatte opposed it. But with his own committee sponsoring legislation without his approval, and Speaker John Boehner announcing his support of the bill, pressure was mounting on Goodlatte to do something. (Goodlatte's office declined interview requests.) Leading into the summer recess, Goodlatte promised that he and ranking Democrat John Conyers would present their own bipartisan criminal-justice reform bill when Congress reconvened in September. But the month came and went, and no legislation emerged. It was only after the Senate unveiled its bill that Goodlatte and Conyers hurriedly announced that they were putting forward companion legislation — effectively identical to the Senate's.

With the recent chaos in House leadership, the bill's fate is uncertain. "Guessing how House Republicans are going to act is extremely difficult," says Danyelle Solomon, of the Brennan Center for Justice. "It depends on who their next speaker is, and what their priorities are going to be before we can discuss how this moves forward."

Unfortunately, time isn't a resource in great abundance for the passage of a sentencing-reform bill. Next year is a federal election year, and it's only a matter of months before that process sucks all the air out of Washington. "If we're going to get enactment before the election grinds everything else to a halt, it's going to have to be the House acting on the Senate bill before the year is out," predicts Haile, of the Sentencing Project.

With all of the negotiation and speculation at the policy level, it's easy to forget the real lives that are at stake here. Stephanie George was a 26-year-old mother of three when she was convicted on drug-conspiracy charges because the man she was dating had kept drugs and money in her house. George had previously pleaded guilty to state charges that she'd sold $160 worth of cocaine to a police informant, so under the federal three-strikes-and-you're-out law, she was sentenced to life in prison. George was locked up nearly 18 years before Obama commuted her sentence, along with a handful of other nonviolent drug offenders. One of her sons died shortly before her release. Out for more than a year now, George is still struggling to find a good job, to reconnect with her remaining children and to rebuild her life. She says she doesn't think most politicians consider the costs a mandatory-minimum sentence brings, the widening circles of suffering and loss that ripple out from a case like hers.

"I would definitely tell them that they need to do away with the mandatory-minimum," she says. "I don't think they're thinking about the damage that this does to the kids and to the family. Not everyone who has made a mistake needs to have a life sentence."

For the tens of thousands of federal prisoners spending decades of their lives behind bars on a mandatory-minimum sentence, the stakes for meaningful reform could not be higher. And even if the legislation does pass before the end of the year, advocates say, it's only a beginning. "This is a first step," says Molly Gill, government affairs counsel of FAMM. "We still will have mandatory-minimums. Unless we significantly reduce the number of drug prosecutions, the math is inevitable: Over time, we're going to keep filling up our prisons."