"Non-serious, non-violent, non-sexual": Fixing our mass incarceration problem means getting past the easy steps

Our prison problem goes deep. Resolving it means changing the way we lock people away for longer than other nations

Published October 26, 2015 12:00PM (EDT)

  (Reuters/Lucy Nicholson)
(Reuters/Lucy Nicholson)

You can't end mass incarceration without addressing the plight of violent offenders.

"We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana," said Hillary Clinton in the first Democratic debate, declining to embrace legalization but expressing sympathy for the plight of jammed-up users.

It is hard to think of a quote that better encapsulates the limits of the current mainstream conversation over criminal justice reform: there are, in fact, not so many people in prison simply for marijuana possession. Indeed, the number of people in state prisons for mere drug possession is just about 49,100, according to a march Marshall Project story.

That is still no doubt too many. And decriminalizing drug use would have an enormous impact on shifting the country's response to drug addiction toward a public health approach. It's just that it won't do much to end mass incarceration. Releasing every nonviolent drug offender from state prison, dealers included, would only reduce a state prison population of roughly 1.35 million by about 210,200, as this handy Marshall Project calculator makes clear. Compare that to the roughly 707,500 in state prisons for violent crimes like murder (166,800), robbery (179,500) and rape (160,900).

The United States' big criminal justice problem is that it punishes people more severely for most crimes, minor and major, than most countries.

Recent steps to wind down the United States' gigantic prison system are still a big deal. Last week, President Obama moved to expand access to treatment for opioid addicts. Police chiefs and prosecutors from around the country last week announced the creation of Law Enforcement Leaders to Reduce Crime and Incarceration. Obama is finally moving to commute sentences for people serving harsh sentences in federal prisons, and the U.S. Sentencing Commission has reduced sentencing guidelines for many federal drug offenses, freeing thousands early.

Last week, important criminal justice legislation introduced by Sen. Chuck Grassley was voted out of the Judiciary Committee. It's far from everything that reformers want. But it includes some significant provisions that would reduce severe mandatory minimum sentences for harsh second-and-third strike drug offenders, and for illegal gun possession. The Fair Sentencing Act of 2010, which reduced disparate sentencing for crack and powder cocaine, would be made retroactive, impacting more than 6,000 federal offenders, according to Families Against Mandatory Minimums. And judges would have increased access to a "safety valve" so that nonviolent drug offenders without a serious criminal background can be sentenced to terms less than the mandatory minimum.

Molly Gill, government affairs counsel for FAMM, said "it didn't go as far" as she hoped. But it is still a very good bill.

"It's a start," she says. "There are some very good reforms in the bill that address some of the worst mandatory minimums that we see ... Families are going to be reunited sooner, parents are going to be able to come home and watch their kids grow up. And those are all good things."

On the back end, the legislation's earned time provision allows some offenders who complete education, drug rehabilitation, work training or religious programs to gain early release to home confinement or a halfway house.

The Grassley bill has problems: it shortens still-draconian mandatory minimums too little (take the reduction of mandatory life for a drug offender with two prior drug or violent offenses to 25 long years), it fails to address the huge number of federal prisoners who are nonviolent immigrants serving time simply for illegal reentry, and includes unnecessary new mandatory minimums for interstate domestic violence and for assisting terrorists.

But what's conspicuously missing from this bill, and from a lot of mainstream criminal justice reform discussions, is what to do about people who commit the sort of crimes that most people understandably find most objectionable — violent ones, like murder, rape and aggravated assault.

"If we really want to have an impact on mass incarceration we need to look at the issue of time served in prison for violent offenders," says Sentencing Project Executive Director Marc Mauer.

Grassley's bill does touch on violent offenses, but only to reduce draconian and catch-all mandatory minimums for second and third strikes for drug offenders with prior violent offenses. And violent offenders are a small piece of the federal system but a huge proportion in the much larger state system — so the big changes won't come from Washington. That said, the tone set from the top will help determine whether criminal justice reform will ultimately be bold enough to end mass incarceration.

Last week, President Obama addressed just that at a White House forum. He was remarkably candid.

"Can we, in fact, significantly reduce the prison population if we’re only focusing on non-violent offenses where part of the reason that in some countries -- in Europe, for example -- they have a lower incarceration rate because they also don’t sentence violent offenders for such long periods of time," said Obama. "I think it’s smart for us to start the debate around non-violent drug offenders. You are right that that’s not going to suddenly half our incarceration rate, but if we get that -- if we do that right ... then that becomes the foundation upon which the public has confidence in potentially taking a future step and looking at sentencing changes down the road. So I don’t think there’s anything wrong with us saying, you know what, violent crime we want to keep down. We are going to be a little more hesitant initially in how we think about sentencing on violent crime than we are on non-violent crime."

For now, the bipartisan consensus certainly seems limited to nonviolent offenders. Holly Harris, executive director of the U.S. Justice Action Network, says that improving reentry opportunities and supports is the key to reducing the violent offender prison population. The network is the marquee bipartisan reform group, comprised of organizations ranging from the ACLU to FreedomWorks.

"Your violent offenders didn't start at that way. Your violent offenders started out as nonviolent offenders who couldn't successfully reenter society," says Harris.

Harris wouldn't discuss direct sentencing reforms for violent offenders. Molly Gill, of FAMM, said she wouldn't comment on violent offenders either.

"That's not what we're focusing on right now. Right now we're focusing on these drug offenses."

Douglas A. Berman, an expert on criminal law and sentencing at Ohio State University's Moritz College of Law, says that ending the drug war is a good place to start: it is the Gordian Knot and, if successful, the key, to broader criminal justice reform.

"If we end the drug war, a lot of other aspects of both what causes true violent crime and the context within which we look at violent crime necessarily changes," he says. "I don't think it's coincidental that when we decided to get tough on drug offenses we saw all sentences go up exponentially. It was part of a broader punitive turn that has a way of leveling up."

Berman hopes that ending the drug war (which, to be clear, the Grassley bill in no way does) sets a new tone for the criminal justice system.

But if the goal is to reduce the prison population to something similar to that which prevails in most European countries then the U.S. must move to reduce sentences for violent offenders too. Keep in mind that not all people who kill pose a long-term threat: many street corner murders are the result of internecine warlike feuds, not sociopathy, and violent offenders will typically "age out" of the propensity to commit crimes most typical of young men.

"The problem of people who were convicted of violent offenses but who no longer pose major threats to public safety has to be central to the discussion of criminal justice reform, not an afterthought," says Marie Gottschalk, a political scientist at the University of Pennsylvania and the author of "Caught: The Prison State and the Lockdown of American Politics," in an email. "President Obama said we should begin by focusing on the 'low-hanging fruit' -- the nonserious, nonviolent, nonsexual offenders -- until we have a better idea of what works in criminal justice reform. But we already know now what works. The evidence is clear. People age out of crime. Lengthy sentences do not reduce crime. It is the certainty of punishment not the severity of punishment that has the greatest crime reduction effects."

It would be a mistake to make the perfect the enemy of the good. But in criminal justice reform, imperfect solutions can do great damage — particularly the standard rhetoric about easing up on nonviolent offenders so that police and prosecutors can focus on cracking down on violent criminals. The same goes for the anti-death penalty argument that touts life without parole as a humane alternative to executions. 43 people were executed in 2012, according to The Death Penalty Information Center. That year, 159,520 were serving life sentences, 49,081 of them without parole, according to the Sentencing Project.

Limiting reform to the nonviolent, nonserious and nonsexual offenders (the so-called "non, non, nons"), or insisting on new harsh sentences for some crimes in exchange for greater leniency for others, will produce justice for people serving painfully long sentences. But it creates new risks. The trick is to embrace piecemeal reform without losing sight of the big picture, lest criminal justice reform find itself in a political cul-de-sac that leaves the United States with one of the greatest systems of human punishment the world has ever known.

By Daniel Denvir

Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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Barack Obama Hillary Clinton Mass Incarceration Prisons