How to Really End Mass Incarceration

American Civil Liberties Union
American Civil Liberties Union (Photo credit: Wikipedia)

Published in The New York Times

IN 2003, I represented dozens of African-American residents in Tulia, Tex., who had been convicted after a botched drug sting. Jason Jerome Williams, a 22-year-old with no prior criminal record, had been sentenced to 45 years in prison for four sales of an eighth of an ounce of cocaine. Freddie Brookins Jr., 25, had received 20 years for a first-time offense of selling less than four grams of cocaine. Joe Moore, a 56-year-old hog farmer, had gotten 90 years for two cocaine sales totaling under five grams. Others accepted plea deals to try to avoid such lengthy prison terms.

The convictions, in 1999 and 2000, were based on the flawed testimony of an undercover officer. The prosecution offered no physical evidence of marked bills, weapons, narcotics or drug paraphernalia — things you would expect to find in a sophisticated drug ring.

It took years of advocacy by many lawyers to win their release, but this hard-fought vindication was just a flash in the pan. Starting in the 1970s, a domestic “war on crime” dominated by antidrug policies and racial profiling fueled a prison-building binge that is morally — and now financially — bankrupt. Both political parties embraced draconian policies like mandatory minimum sentences, three-strikes laws and wide disparities in sentences for possession of crack versus powder cocaine. The result: by 2003, the United States had 4.6 percent of the world’s population but 22.4 percent of its prison population — even though violent crime started dropping in the 1990s. Prospects for reform looked bleak.

So I was elated when Attorney General Eric H. Holder Jr. announced on Monday that the government would commit to reducing the bloated prison population. This is without precedent: the nation’s top law enforcement official directed all federal prosecutors to exercise their discretion toward ending the relentless warehousing of inmates — the vast majority of whom are minorities — in federal prison for low-level drug crimes.

But the immediate impact will be very limited at best. First, federal inmates accounted for just 14 percent of the nation’s 1.6 million prisoners last year. Second, Mr. Holder has limited authority to enact permanent reforms without Congressional action. Third, it’s unclear how federal prosecutors will enforce his plan. To maximize its impact, the Justice Department needs to track implementation by the 93 United States attorneys around the country and hold them accountable for enforcing the policy.

For lasting national impact we need to look at the states, where most criminal defendants are sentenced. Over the past few years, a quiet revolution has been brewing in state capitals. Historically low crime rates and shrinking state coffers have led to a nascent consensus among lawmakers and advocates across the ideological spectrum that our addiction to incarceration is not sustainable, effective or humane. Republican governors in cash-strapped states have been among those leading the charge. States as varied as Texas, New York, Colorado and Michigan have passed reforms that have stabilized or significantly reduced prison populations without increasing crime.

What Mr. Holder has done is turn up the dial, lending his imprimatur to a growing sense of national urgency and moral necessity. The muted reaction to his announcement from ardent conservatives is a reflection of the shift in debate.

But this is no time to rest. Those who seek a fairer criminal justice system, unclouded by racial bias, must at a minimum demand that the government eliminate mandatory minimum sentences, which tie judges’ hands; rescind three-strikes laws, which often make no distinction between, say, armed assault and auto theft; amend “truth in sentencing” statutes, which prohibit early release for good behavior; and recalibrate drug policies, starting with decriminalization of marijuana possession and investment in substance-abuse prevention and treatment. Federal aid to state and local agencies, like the Edward Byrne Memorial Justice Assistance Grant and the Community Oriented Policing Services, must prioritize diversion and rehabilitation over arrest and incarceration.

I am not naïve about the challenge, or of the needs of crime victims. In 1992, as I was finishing high school, my 71-year-old paternal grandmother was murdered in a house robbery in Sahibabad, India. The killing remains unsolved, and the anguish it caused my family will never fade away. But in America, our criminal justice system has too often focused on vengeance and punishment (and racial suspicion) rather than on crime prevention, restitution for victims and the social and economic reintegration of released prisoners into our communities so that they do not turn to crime again.

The buildup of our prison-industrial complex was a bipartisan process that unfolded over decades, and digging ourselves out of this hole will require unlikely political alliances. (For instance, the American Civil Liberties Union is working on sentencing reform with Right on Crime, a conservative initiative, and the American Legislative Exchange Council, an organization whose stances on immigration, voting and other civil rights policies we are fighting tooth and nail.) And where there is a lack of political will, we need to bring litigation of the kind that drove down prison populations in California and New Jersey and organize to make our voices heard.

The work ahead is daunting, but Mr. Holder’s announcement holds out hope that we have crossed a threshold, that there is no longer any serious argument about whether there is a problem with criminal justice in America. It’s sad it took so long for this moment to arrive — and that the impetus has come as much from budget pressures as from concerns about justice — but we need to seize it.

Vanita Gupta is a deputy legal director at the American Civil Liberties Union.

A version of this op-ed appeared in print on August 15, 2013, on page A23 of the New York edition with the headline: How to Really End Mass Incarceration.

2 thoughts on “How to Really End Mass Incarceration

  1. it was stated in (How to Really End Mass Incarceration) August 15th 213 New York Times
    way down at bottom of page about Sentencing Reform -Right on Crime- we need to bring legislation of the kind that drove down prison population in Calif and New Jersey and organize to make are voices heard. I will speak for Calif only for this is where I live it’s a laugh when the News comes out that isn’t the truth. Calif Governor Brown hasn’t done his job in bring down the overcrowding of the prisons here in Calif there still way overcrowded. I don’t know why a respected news paper as New York Times would state something that is far from the truth. Calif prisons are hurting badly wasting money just moving 100’s of inmates around from one prison to another still no place to put these prisoners. Oh Brown will say the jails will they have been overcrowded for many years. Governor Brown has been lying to the courts and press nothing has been fixed here in Calif the system is still broken. We need to let the Feds take over and get this mess cleaned up for good it’s way past due and we all know it here in Calif expect Brown. Come out with the truth the prisons are a money making machine paying inmates 9 cents an hours or a little more depending on what kind of jobs the inmates gets. Inmates have produce believe this missile cables (including those used on the Patriot missiles during the Gulf War wiring harnesses for jets and tanks. Invisible American workforce today is yes the inmates in all States across America. Finally Prison Labor has been exposed and your jobs have been taken away, this is why the government and our Governor Brown doesn’t want to let the inmates out from the prison system is a business a huge find out what these business are and don’t support them any longer. Think out side the box people? Susan Wilson


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