Will Trump’s Prison Reform Policies Send More Innocent People to Jail?
How many innocent people will end up serving time in prison because of President Trump’s policies? Of course, even one is too many, but if recent developments are any guide, it could be a lot more than that.
Recently, researchers at the National Registry of Exonerations announced that 2016 set a record for exonerations in a single year: 166. Of that total, 74 pleaded guilty to crimes they did not commit. Most of those exonerated after pleading guilty had been charged with drug crimes, even though lab reports later revealed that no illegal drugs had been involved.
Barry Demings is one such person. In 2008, Houston police pulled Demings over on his way to work. They found a little white powder on the floorboard of his Ford Explorer. Demings hadn’t noticed it but thought it might be soap; he had just detailed his SUV. The officer who pulled him over thought it was something else. He dropped the powder into a small test kit and told Demings that it tested positive for cocaine.
Demings couldn’t believe it. He insisted he was innocent. But because of our insane drug laws and his prior convictions, the 55-year-old African American was told he could face a sentence as long as 30 years in prison. Justifiably scared, he accepted a deal. He pleaded guilty and served six months in jail, losing his job and girlfriend. (Seven years later, the defense and prosecution jointly filed to have the conviction overturned and Demings was exonerated.)
“How many innocent people will end up serving time in prison because of President Trump’s policies?”
Cases like Demings sicken, but no longer surprise me. For the past two decades, I have sat on the boards of several national criminal justice reform organizations, including the Innocence Project and Families Against Mandatory Minimums (FAMM). More recently, I launched a podcast, Wrongful Conviction with Jason Flom, which profiles some of the amazing men and women who have lived to see their bogus convictions overturned.
My work with these organizations has shown me how harsh sentencing policies contribute to the problem of false confessions. Over the years, the balance in power between individual defendants and prosecutors has shifted to such a degree that those accused of crime – even those who are innocent – can feel like they don’t have a chance to prevail in court. Many of those who want to fight do not even have the resources to afford bail so they languish in prison, often in dangerous conditions away from their families.
Former federal judge Jed Rakoff and other experts attribute this growing disparity in power to the rise in harsh sentencing policies, including mandatory minimums, which give prosecutors the power to craft the sentence a defendant will serve based on how the prosecutor defines the crime. Even casual observers of human nature will not be surprised that more and more defendants — even innocent ones like Demings — are willing to “cut a deal” with prosecutors to avoid the risk of serving much longer prison sentences (or receiving the death penalty in some cases).
“What might surprise and disturb most Americans is how widespread this problem has become.”
What might surprise and disturb most Americans is how widespread this problem has become. According to Judge Rakoff’s opinion piece in the New York Review of Books, “the few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent.” That range suggests that, based on a total incarcerated population of 2.2 million, anywhere between 40,000 and 160,000 Americans are in prison for crimes to which they pleaded guilty but did not actually commit. Let that sink in for a moment.
President Trump is likely to make this problem worse. He appears to be laying the groundwork to pass new federal mandatory minimum sentencing laws, to increase federal prosecutions of state and local crimes and to generally increase federal authority over street crime. Indeed, after swearing in Jeff Sessions as attorney general, Trump signed three executive orders that were consistent with his firm but demonstrably false view that crime is out of control.
If even stricter federal sentencing policies are enacted, not only will more low-level offenders receive excessive prison terms, we should expect more Americans who committed no crime at all to go to prison, like Barry Demings. Those of us who have been fighting for criminal justice reform for decades, and who are disturbed by the need for exonerations in the first place, should be clear-eyed about the threat posed by Trump’s rhetoric and policies. Every American should be.
Jason Flom is the founder and CEO of Lava Records. He has had an extensive career as a leader in the music business, including his roles as the chairman and CEO of Capitol Music Group, Chairman and CEO of Atlantic Records. Flom is a founding board member of the Innocence Project, and serves on the board of FAMM (Families Against Mandatory Minimums).