An inside-the-Beltway law school lacks the stereotypical glamour of a movie premiere venue. But it makes sense when the movie tells the history—or at least one version of the history—of the policy decisions behind mass incarceration.
The feature-length documentary film “Incarcerating US,” which premiered September 15 at Georgetown Law School will be followed by a panel discussion of national experts and advocates. [See editor’s note below.]
One member of that panel, Eric Sterling of the Criminal Justice Policy Foundation, stands out for the singular role he plays in the film.
About midway through the documentary, Sterling’s role changes from war-on-drugs historian and de facto narrator to confessor of mass incarceration’s original sin. As a House staffer, Sterling played a key role in drafting bills to impose Reagan-era mandatory minimums and other drug-enforcement laws that snowballed through the 1980s and 1990s into a vastly larger prison population.
“I was a colonel in the war on drugs,” Sterling says on camera. He goes on to tear apart the flawed reasoning of attacking drug addiction and trafficking with ever-harsher penalties, only to see the supply still easily meet demand.
“It’s fundamentally illogical,” an anguished Sterling says. “It’s irrational.”
But is such flawed reasoning the primary cause of America’s stratospheric incarceration rates? That question is at the heart of a conversation that criminal justice writer Mark Obbie had with the film’s director, Regan Hines.
Hines, who is making his directorial debut with this film after working on other celebrated documentaries such as “Nerd Prom” on the White House Correspondents’ annual dinner, discusses how he decided to tell the story, why he chose to make an advocacy film instead of balancing it with tough-on-crime advocates, and how he hopes it will fit in with the larger campaign for system reform.
The conversation has been edited for length and clarity.
The Crime Report: Most documentaries on criminal justice take one case, or one place, and drill into the details to illustrate one question that reformers are asking. Yours takes a broader sweep. How did you pick your focus, and then how did you figure out how to tell it as a story?
Regan Hines: I originally became interested in criminal justice by doing quite a bit of research on the war on drugs primarily. It was just a passion on the side before I decided this is something I should make a documentary about. The more I read, the more outraged I got. So I just wanted to make more people aware. And the best way I thought would be to direct a documentary tackling that question about why the U.S. has the highest incarceration rates in the world.
Other documentaries picked something specific, like the three-strikes law, or they would show how policing is done in certain cities and how the drug laws impact those communities. I just felt like so many of these different things were connected and it was really hard to get a thorough understanding without having a good overview of how all these laws came about, what the environment was. So that really made me want to have a strong historical line in the documentary.
There was a lot of worry about crime in the ‘60s and ‘70s, and drugs became a big issue; and there was a lot of politics involved in why certain politicians decided to really take on that issue and a lot of stories in the media. So I thought if you didn’t have an understanding of what was going on then, and why everyone was clamoring for tougher penalties and longer sentences for criminals, it would be hard to kind of wrap your head around how bad things are now with the system and why they got that way.
TCR: You show old news clips, and have Eric Sterling explaining along the way how this was building a head of steam. But before that, the news clips are more recent, about overcrowded prisons, and then we see Carolyn LaCroy of The Messages Project showing inmates how to talk to their children through a camera as she makes their video messages.
Hines: I think people would be more sympathetic if they actually hear the real, human stories of people that got locked up with these long sentences, rather than just hearing in the abstract that we’re gonna give these terrible drug traffickers long sentences.
TCR: One former inmate whose story you show in depth is Tracey Syphax, who we see becoming a successful businessman. How does his example tie in with your larger point?
Hines: Tracey was really kind of a perfect fit for the film, because he shows that if we’re locking up this many people, there could be a whole lot of wasted potential if you could just imagine how many more Traceys there might be in the system. You know, he had a drug problem and he did sell drugs, but look at what he made of himself after he had that second chance. He was fortunate that he didn’t get a mandatory minimum, because he could have had a much longer sentence. He might even still be in prison based on some of the laws that are on the books. There are people that are serving life sentences in prison that could be doing the same thing, but you know we decided to lock them away forever.
TCR: Another former inmate, Amy Povah, gets locked up on a conspiracy charge—24 years for what sounds like a minor role in transferring money for her Ecstasy dealer boyfriend—and then she gets clemency from President Clinton. She also happens to be a white, beautiful former model who had powerful help in drawing attention to her case. Wasn’t she just a beneficiary of favors that most people can’t get?
Hines: I hope people get that, that there a lot of people that get left behind and don’t have those advantages or just weren’t able to put together that kind of campaign, and they’re just left behind. So we need to realize that clemency is great for those individuals that get it, and we should celebrate the ones that do; but at the end of the day we really need to have front-end reforms and real reform so that we’re not putting so many people in prison in the first place.
TCR: So you don’t hide from the fact that this is a piece of advocacy. Is that why only advocates for reform appear in the film?
Hines: We did actually interview Bill Otis, a former federal prosecutor. He very strongly gave the argument that the crime rate is down and that’s because we locked up so many people. When looked at from that perspective, the criminal justice system is working fine.
But there was just so much information to pack in on the historical side and for making the more polemical argument for reform, we realized that it just didn’t make sense to have that counterargument. And the way that I justify it was that people have been making the argument that he’s making for a long time. We wanted to take the full hour and a half of this movie to really paint the other side and make a good argument for what I think is the true story: that we’re locking up a lot of people that are nonviolent drug offenders. That’s why criminal justice reform is needed. So we cut that part out.
TCR: But on the drug question, doesn’t the film conflate the war on drugs with mass incarceration? You start the film talking about the huge growth in prisons and how they’ve changed so much in recent history, and then it telescopes in on drugs and stays there. Are you blurring the two? Most people in prison are not there for nonviolent drug crimes.
Hines: At the federal level it is much clearer that the drug offenses typically have a huge impact. But I agree, drugs don’t account for the majority of prisoners in the overall system. Here’s why we focused on the federal side and drug laws. When we passed a lot of the laws with the ramp-up for the war on drugs and we put mandatory minimums on drug crimes, that changed the whole sentencing scheme.
If you have a mandatory minimum of 10 years for a crack cocaine offense, when you look at that in comparison with a violent crime or a property crime, it’s hard to justify those that have a lower sentence, and it pushes those sentences up as well. So I think there’s been a general increase across the board for sentences.
There are a lot of things that need to be changed and that need to reform in the system, but the most glaring one, the most obvious, is the war on drugs and the fact that we’re putting nonviolent drug offenders behind bars for 10 years, 20 years, even life sentences.
It’s just so outrageous and so obviously wrong that we should deal with that first. And if we can’t reform those laws, it’s gonna be pretty tough to deal with some of the other problems in the system.
Editor’s Note: The live-stream panel is archived here. Panel members also include: Julie Stewart, president, Families Against Mandatory Minimums; Marc Levin, policy director, Right on Crime; Neill Franklin, executive director, Law Enforcement Against Prohibition; Nancy Gertner, former U.S. Federal Judge, Harvard Law School.
Mark Obbie, a former executive editor of The American Lawyer, writes on criminal justice issues for a variety of online and print publications, including The New York Times, The Trace, and TakePart. He can also be reached through his Twitter account. He welcomes readers’ comments.