An Achievable Post-Election Justice Agenda


Julie Stewart

The long, contentious election is over——and advocates of criminal justice reform are right back where we started. President Barack Obama has reportedly asked Attorney General Eric Holder to stay at the helm of the Justice Department for a while.

The Democrats kept control of the Senate and the Republicans held onto the House.

So, if the policymakers are largely the same, can we really expect any meaningful changes in policy?

I think we can.

My cautious optimism is rooted in the fact that the differences between the parties on anti-crime policy have shrunk considerably. President Bill Clinton's success in moving Democrats to the center on crime issues by, among other things, embracing the death penalty, has been well documented.

In recent years, thanks to budget hawks and religious conservatives, particularly at the state level, Republicans have also tacked to the center.

Evidence of these shifts could be detected in the remarkable silence about any crime-related issues during the last campaign.

During his first term, the President signed into law a bill to reduce crack cocaine sentences, but more notably, Republican congressional leaders supported the bill and agreed to expedite its passage by not requiring a roll-call vote.

Moreover, Obama's record on granting clemency – the stingiest in modern presidential history – left no room for attack—especially from a candidate who, as governor of Massachusetts, did not issue a single pardon.

With both parties closer to the middle, it should be easier to find common ground on some modest, but important changes to our criminal sentencing laws.

Perhaps the most important area of agreement is that prisons are necessary to keep our communities safe from violent offenders.

No one is proposing that violent predators be excused because of a bad family life, a bad economy, or a culture filled with violent movies and video games.

We all want safe streets, and that means keeping dangerous criminals off them.

And, yet, many policymakers on both sides of the aisle are rightly troubled that our nation is the world's biggest jailer, outpacing China, Russia, and every other regime. Are the American people really so criminally inclined?

Not quite.

As the late Harvard law professor William Stuntz noted, if crime rates determined prison population, the United States would have a per capita prison population equal to that of the British, French, Portuguese, or Dutch, not four to seven times larger.

So the challenge and opportunity before policymakers today is how to produce less crime and fewer prisoners.

Part of the answer, according to Stuntz and others, is to hire more police officers.

Another part, especially at the federal level, is to reduce sentences for lower-level offenders and focus more resources on rehabilitation.

Here is a modest, but worthwhile criminal sentencing agenda that could garner bipartisan support:

1. Expand the federal sentencing valve

Congress passed the safety valve in 1994 to spare low-level drug offenders from excessive, ill-fitting mandatory minimums. The reform has proven wildly successful, with almost 80,000 individuals receiving shorter sentences while crime has steadily fallen over the same period. Congress should expand the safety valve to cover other types of offenses and more offenders;

2. Increase early release options

We should be increasing opportunities for federal prisoners to earn early release from prison if they complete proven, recidivism-reducing programs;

3. Clarify federal sentencing laws

These were originally designed to target recidivists so that only true repeat offenders are subject to lengthy sentences;

4. Encourage a more vibrant exercise of executive clemency authority

This will not be difficult given Obama's miserable record to date; and

5. Expand elderly and compassionate release programs

Reinstate the elderly prisoner release program and ensure that the compassionate release program works as intended, so that valuable prison bed space is not wasted on offenders who pose no threat to society.

These changes would not unleash a torrent of dangerous criminals back into society. Nor would they save enough money to cure our government's fiscal woes.

But they would save some money while advancing two goals policymakers from across the political spectrum should support: less crime and fewer prisoners.

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.

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