On August 1, the Senate Judiciary Committee held a hearing to look at rising federal prison spending and its impact on the overall criminal justice budget. The hearing followed the release of a letter by Assistant Attorney General Lanny Breuer to the U.S. Sentencing Commission arguing that federal corrections spending is forcing reductions in federal assistance to states for police, prosecutors, and prevention programs.
Prompting both events, of course, is the government's miserable financial condition, marked by record federal deficits and ballooning national debt that have forced the President and Congress to look throughout the federal budget for places to cut spending.
"In an era of governmental austerity, maximizing public safety can only be achieved by finding a proper balance of outlays that allows, on the one hand, for sufficient numbers of police, investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes," Breuer said in the letter.
"And on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender."
Calling current increases in the federal corrections budget "unsustainable," Breuer wrotes that current overcrowding in federal prisons "puts correctional officers and inmates alike at greater risk of harm and makes recidivism reduction far more difficult."
That's a pretty damning indictment, given that reducing the risk of re-offending should be a top priority of the criminal justice system.
Justice Department leaders deserve credit for identifying how the current budget climate could negatively affect public safety unless criminal justice resources are allocated wisely. And Senate Judiciary Committee Chairman Patrick Leahy is right to bring congressional attention to this critical issue.
Indeed, we hope the hearing prompts all stakeholders in the criminal justice system to explore ways for us to be tough on crime without being tough on taxpayers.
FAMM has long advocated applying the same cost-benefit analysis applied to so many other policies and regulations to the criminal justice system.
When we talk of cost-benefit analysis, we do not mean that society should tolerate more crime to save money. The cost of many crimes—measured in lost property and money, in personal injury, and, tragically, in lost lives—far exceeds the cost of incarceration.
Compared to losing a loved one or losing one's life savings, the approximately $28,000 per year it costs to keep a dangerous person in federal prison seems like a bargain. But when that money is spent on excessive and one-size-fits-all prison terms for those who are not a threat or would thrive with smarter alternative punishments, we waste scarce resources and put society at risk.
Policymakers who are worried – and rightly so – about overcrowding federal prisons and swelling of prison budgets should look at what is driving these unsustainable increases.
The Sentencing Commission last year found that a significant share of the blame rested with mandatory minimum sentences, a point also raised by Chairman Leahy at Wednesday's hearing.
In a special report to Congress, the Commission wrote:
"Statutes carrying mandatory minimum penalties have increased in number, apply to more offense conduct, require longer terms, and are used more often than they were 20 years ago. These changes have occurred amid other systemic changes to the federal criminal justice system . . . that also have had an impact on the size of the federal prison population.
"Those include expanded federalization of criminal law, increased size and changes in the composition of the federal criminal docket, high rates of imposition of sentences of imprisonment, and increasing average sentence lengths. [T]he changes to mandatory minimum penalties and these co-occurring systemic changes have combined to increase the federal prison population significantly."
There are many different ways policymakers might seek to reduce corrections spending while maintaining if not improving public safety.
They can make better use of the compassionate release program so that elderly, disabled, and terminally ill offenders, who pose no threat to society, are not forced to serve their full sentences.
They can allow some prisoners to earn some time off their sentences if they successfully complete proven recidivism-reducing programs.
Finally, they can reserve expensive prison space for violent and repeat offenders and make use of new technologies and methods that make it possible for low-level, nonviolent offenders to be held in the community.
Policymakers' first step, however, should be to do no harm. Yet, pending before Congress at this very moment are proposals to impose new mandatory minimum sentences in the Violence Against Women Act (VAWA) reauthorization, the Senate's Cybersecurity bill, and new legislation dealing with identity theft on tax returns.
These proposals cover vastly different offenses, but share two lamentable traits: (1) none of the new mandatory minimums was the subject of a congressional hearing or debate about its utility or lack thereof, (2) all of these new proposals will exacerbate the federal prison problem without any assurance of improving public safety.
In fact, in the case of the new mandatory minimum in the VAWA reauthorization, the only stakeholder to weigh in on either side—pro or con—was a group dedicated to protecting women's security, which warned Congress that its new penalty provision would hurt, not help, abused women.
Now that DOJ and Congress have identified the threat to public safety posed by the runaway federal corrections budget, it is time for them to work together, and with other stakeholders in the criminal justice system, to adopt smart, cost-effective sentencing and prison policies.
As Mr. Breuer so aptly noted in his letter to the Sentencing Commission, "[P]risons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending.
Julie Stewart is president and founder of FAMM (Families Against Mandatory Minimums, and a frequent contributor to The Crime Report. FAMM works for fair and proportionate sentencing laws that allow judicial discretion while maintaining public safety. She welcomes comments from readers.