In this era of hyperpartisanship, the liberal-libertarian convergence on criminal-justice reform is, frankly, astonishing. Everyone from the Koch brothers to George Soros, from Tea Party Texan Sen. Ted Cruz to Democrat Hillary Clinton are singing from the same hymnal: "Today, far too many young men — and in particular African-American young men . . . find themselves subject to sentences of many decades for relatively minor, nonviolent drug infractions," Cruz told reporters in February, before implausibly invoking French literature. "We should not live in a world of Les Misérables, where a young man finds his entire future taken away by excessive mandatory minimums." In one of her first major policy speeches of the 2016 campaign, Clinton decried "inequities" in our system that undermine American ideals of justice and declared, "It is time to end the era of mass incarceration."
But as unusual as the setup is, the punchline, in Washington, remains the same. Outside of limited executive actions by the Obama administration, durable reform is stymied. Entrenched interests from prosecutors to private prisons remain a roadblock to change. Meaningful bills are tied up by law-and-order ideologues like Senate Judiciary Chairman Chuck Grassley, the 81-year-old who brands his adversaries as belonging to "the leniency industrial complex."
Progress in the states, meanwhile, is modest at best. "Nobody's trying to hit home runs," admits Grover Norquist, the GOP's anti-tax czar and a leading conservative advocate for reform. "This is all about singles and not yet any doubles."
The imperative for criminal-justice reform is aching and obvious: In the past 40 years, the U.S. prison population rose 500 percent. The drug war has been the biggest driver: There are more people locked up today for drug offenses alone than the entire prison system held in 1970.
According to a 2014 report on mass incarceration by the National Academies of Sciences, more black men born in the post-Civil Rights era have served time in prison than graduated from a four-year college. Where one in 87 white men is in jail or prison, for African-American men the number is one in 12. The U.S. has less than five percent of the world's population, but nearly a quarter of its prisoners. As 2016 Democratic dark horse and longtime reform advocate Jim Webb writes, "Either we are home to the most evil people on Earth or we are doing something dramatically wrong in how we approach criminal justice."
The success of criminal-justice reform will depend on the depth and durability of this unlikely coalition between the left and the right.
The injustice of our justice system is so inescapable even U.S. Attorney General Eric Holder denounced it, writing during his final months in office that "policies designed to be 'tough on crime' have perpetuated a vicious cycle," the effect of which has been to "devastate entire communities — particularly communities of color."
If such data points raise liberal hackles, the conservative case against mass incarceration is just as compelling. Americans spend more than $80 billion a year keeping our fellow citizens on lockdown. According to the Vera Institute of Justice, the average per-prisoner cost of incarceration is more than $31,000 a year, a price tag that can rise as high as $60,000 in New York. This is not just a drag on state budgets. The federal government itself spends more than $8 billion on incarceration and detention, and offers nearly $3.8 billion more in criminal-justice subsidies to states.
"Spending more money is not being tougher on crime," Norquist told Wisconsin conservatives in April. "Putting more people in prison is not being tough on crime — it's just a waste."
Going into an election year, even this rare issue with broad bipartisan backing is not immune to gamesmanship and demagoguery on the presidential stage. Sen. Rand Paul is already bandying criminal-justice reform as a cudgel against Clinton. Should he become the GOP nominee, Paul declared this spring, "I'll ask [her], 'What have you done for criminal justice? Your husband passed all of the laws that put a generation of black men in prison.' "
There is truth to Paul's charge, but also skillful distortion. Federal mass-incarceration policies took root in the Reagan era, with the passage of the Anti-Drug Abuse Act of 1986, which imposed mandatory minimums for drug sentences, and punished trade in five grams of crack, prevalent in the black community, as harshly as 500 grams of powder cocaine, the party drug of affluent whites. In 1988, Ronald Reagan escalated the racist drug war, signing a bill making mere possession of five grams of crack punishable by a federal five-year mandatory minimum. Two decades later, 79 percent of prisoners being sentenced for federal crack offenses were black.
Bill Clinton upped the ante during his first term with the passage of the Violent Crime Control and Law Enforcement Act of 1994 — a bipartisan answer to America's then-sky-high crime rates. The Clinton crime bill included provisions favored by progressives, including the (now expired) federal ban on assault weapons and billions in funding for "community policing." But the legislation also imposed a federal "three strikes" statute and ballooned state-prison populations by offering nearly $8 billion in grants for new prison construction. By the end of Clinton's presidency, the federal prison system had added more prisoners than under Reagan and George H.W. Bush combined.
In a recent essay, Bill Clinton defends this policy on the macro level — celebrating the collapse in crime rates in the years since the bill's passage as an "extraordinary national achievement," even as he concedes that on incarceration he "overshot the mark." Here, Clinton blames the GOP. "The Republicans basically wanted to emphasize 'three strikes you're out' and all that," he said recently. "But I wanted to pass a bill, so I did go along with it."
And Hillary Clinton was right there with him. As first lady, she campaigned for the crime bill, calling it "both smart and tough" and insisting, "We need more prisons to keep violent offenders . . . off the streets."
Paul and other Republican candidates want to hit Clinton on incarceration much the same way Barack Obama bashed her in 2008 for her vote authorizing the Iraq War. Paul's commitment to criminal-justice reform is not posturing. But as a matter of raw politics, he is attempting to drive a wedge between Clinton and black voters — a strike at the heart of what political strategists now refer to as the Obama Coalition. The threat is serious enough that Clinton launched her 2016 campaign by moving far out in front on criminal-justice reform — using unprecedented rhetoric. " 'End the era of mass incarceration?' " says Jeremy Travis, president of the John Jay College of Criminal Justice, echoing Clinton's speech. "We've never heard those words from a presidential candidate before."
As the 2016 hopefuls jockey on politics, cash-strapped states are outpacing the federal government on the issue. In fact, declining incarceration rates may be one of the unlikeliest dividends of the Great Recession.
Perhaps most surprising is the case of Texas. A decade ago, Texas' incarceration rate was second in the nation, and the prison system was expanding so rapidly that it threatened to hobble the state budget. Under the leadership of then-Gov. Rick Perry, the state overhauled its criminal-justice strategy. Since 2007, the state has closed three prisons and shuttered six juvenile lockups, saving taxpayers some $2 billion, with no adverse public-safety effects. In fact, crime has plummeted by more than 20 percent, now to the lowest level since 1968. Facing punishing austerity, state governments in places like South Carolina and Georgia have followed Texas' example. "It was terribly important that this kicked off in Texas," says Norquist. "If they had done this first in Vermont, it would never have gone anywhere."
Though laudable, Perry's reforms in Texas must be kept in perspective. The state continues to operate one of the biggest, most expensive penal systems in the world, housing some 222,000 inmates — a figure narrowly eclipsed by Iran's.
In California, the pace of change is becoming more adventurous. In 2012, voters defanged the state's infamous "three strikes" law, ending life imprisonment for nonviolent third strikes. And last November, state voters adopted Prop 47, a law that defelonized minor drug offenses and nonviolent property crimes — transforming the crimes into misdemeanors.
This one change will reduce prison sentences for an estimated 40,000 criminals a year, producing savings the state pegs "in the low hundreds of millions of dollars annually." And this defelonization approach has already inspired similar legislation in states like Utah.
Over the past generation, the federal prison population grew even faster than the states', swelling 770 percent since 1980. Today, federal prisons hold more than 200,000 inmates — less than 10 percent of whom committed a crime of violence. Half are serving time for drug offenses.
In August 2010, in a swan song for unified Democratic control in Washington, Congress passed the Fair Sentencing Act. The bill eliminated the Reagan-era five-year mandatory minimum for crack possession and reduced the unjustifiable 100-to-one crack/powder sentencing disparity. This was both a historic shift — the first federal sentencing reduction for a drug crime since the Nixon era — and a cop-out. Under the new law, crack is still punished 18 times more harshly than powder cocaine. And it took an act of the U.S. Sentencing Commission to make the reform even partially retroactive. But the law did have an impact: By the end of last year, 7,748 federal crack offenders had received reduced sentences, with an average reduction of two and a half years.
The Obama administration has also taken modest executive action to reduce drug sentences. At the direction of Attorney General Holder in 2013, the Justice Department engineered a fragile workaround, urging U.S. attorneys prosecuting cases against lower-level, nonviolent drug offenders to simply not identify the quantity of the drug in question, if doing so would force the judge to apply a mandatory-minimum sentence.
Holder also threw his weight behind a reform called "Drugs Minus Two," which changes the way drug offenses are prosecuted. Under the old guidelines, five grams of methamphetamine was a level-26 offense, punishable by up to six and a half years in prison. Under the new policy, that same drug quantity would be punished at level 24, with a maximum sentence of five years, three months. As mousy as they appear individually, these reforms have created important change: For the first time in 40 years, the federal prison population is shrinking, however modestly. In the past two years, the net federal prison population has shed 4,800 inmates. By the end of this year, it is expected to shrink another 12,200.
If the pace of change is slow in the states and halting from the executive branch, progress in Congress is all but blocked. In a functional legislative branch, a bill sponsored by Utah Republican Mike Lee and Illinois Democrat Dick Durbin called the Smarter Sentencing Act would already be law. The legislation, in line with the wishes of nearly two-thirds of Americans, reforms mandatory minimums for nonviolent drug crime. Offenses that today trigger mandatory sentences of five, 10 and 20 years would be slashed to two, five and 10 years, respectively. A kid busted for dealing a gram of LSD at a Phish concert, for example, would face two (instead of five) years in the clink.
The law would make reduced crack sentences fully retroactive. All in, the bill's reforms would thin federal prison overcrowding from 136 percent to 108 percent of capacity by 2024. The Department of Justice estimates the legislation would save $24 billion over 20 years.
But in the U.S. Senate, criminal-justice reform faces an implacable foe: Iowa Republican Chuck Grassley has the bill bottled up in the Senate Judiciary Committee he chairs. In a March Senate speech denouncing the Smarter Sentencing Act, Grassley suggested reformers would have blood on their hands by making it harder to use the threat of mandatory minimums to flip street-level drug dealers to rat out . . . Al Qaeda: "It would be foolhardy to meet the threat of narcoterrorism," Grassley said, "by cutting drug sentences."
Grassley's intransigence is backed by powerful forces, including an army of federal prosecutors still committed to the drug war. Incarceration in America today has also become a big business. One in 10 inmates is housed in a for-profit facility; Corrections Corporation of America, a leading for-profit jailer, has a market cap of $4 billion, and a history of collaborating with right-wing policy groups like the American Legislative Exchange Council, which promoted tough-on-crime legislation. The employees of prisons also form powerful constituencies: The prison-guards union in California has long been one of the most feared political operations in the state. Across the country, distressed rural communities have become as dependent on the local prison for jobs as an earlier generation might have depended on the local factory or mill. "It's just like any other industry," says Travis, the John Jay president.
The success of criminal-justice reform will depend on the depth and durability of the unlikely coalition that has gathered behind it.
Reformers on the left are putting money where their mouths are. George Soros recently committed $50 million to the ACLU's initiative against mass incarceration, the organization's largest foundation grant in its history. The biggest question mark is the commitment of the Kochs — who are reaping an enormous public-relations dividend by standing for criminal-justice reform but have not, in a transparent way, matched their rhetoric with the kind of resources they invest elsewhere in the political system. Koch Industries helps fund the bipartisan Coalition for Public Safety — a group launched with a modest $5 million budget. The Kochs have also made a "six-figure" grant to the National Association of Criminal Defense Lawyers to support legal services for indigent suspects. The Kochs have talked about the issue as a cornerstone of their "freedom framework." But a company executive also admitted this spring that the Kochs' criminal-justice crusade is part of a PR strategy designed to dispel the brothers' reputation as callous oligarchs.
"This has worked out well for the Koch brothers," says Neera Tanden, president of the Center for American Progress, whose organization is warily aligned with Koch Industries on justice reform. The Kochs, she notes, have yet to mount a full-fledged grassroots campaign for prison reform — and in particular the Smarter Sentencing Act — as the brothers have done for other pet issues.
Nor have the Kochs backed off supporting longtime favorite candidates like Wisconsin Gov. Scott Walker. Though he's dabbled in drug courts, Walker stands out in the GOP field as a throwback, tough-on-crime conservative. He built his career seeking mandatory minimums for trivial crimes like drunken boating, and turned Wisconsin into one of the hardest states in the nation to get parole.
Stopping the growth of the prison-industrial complex is one thing. Actually dismantling it will require the focused work of years, if not decades.
Jeremy Travis oversaw the National Academies report on mass incarceration in 2014. He's convinced that change worthy of the name will require bolder, more radical forms of leadership — starting with a state governor brave enough to call for cutting his or her prison population in half in 10 years. "That will be the real stress test," he says, "to the level of bipartisan commitment."
But when it comes to a system that keeps millions under lock and key, even Travis recognizes there simply is no quick fix. "It took us 40 years to get here," he says. "Hopefully, it doesn't take another 40 years to get us out."