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Radical Shift or Tweaking at the Margins?

Smart Sentencing and the Future of Mass Incarceration

by JAMES KILGORE

On Thursday, January 30, the Senate Judiciary Committee passed the Smart Sentencing Act, legislation aimed at reducing mandatory minimums for Federal drug charges and giving judges more discretion in sentencing.   An ACLU statement described Smart Sentencing as “the most significant piece of criminal justice reform to make it to the Senate floor in several years.” Bill Piper of the Drug Policy Alliance responded with the observation that “the tide has turned against policies that destroy lives and tear families apart.” Like much of the reform happening in criminal justice these days, the Smart Sentencing Act was the product of the odd coalition of liberals like Patrick Leahy and Dick Durbin and ultra-conservatives like Ted Cruz and Rand Paul, who have found a rare point of unity in trying to pare down the nation’s over-populated, highly racialized prison system.With more than 2.2 million people in prisons and jails, nearly 70% of them African-American and Latino, there’s lots of work to be done.

Perhaps the most startling aspect of drafting the Act was the coming together of far right advocacy group, the American Legislative Executive Council (ALEC) and Families Against Mandatory Minimums, a populist group that began campaigning for drug law reform back when Newt Gingrich was still ranting about predatory drug dealers and George Bush Senior was in the White House courtesy of sowing of racial fear via the Willie Horton scare ads.  Like so many on the Far Right, ALEC seems to be born again on criminal justice issues, eschewing its previous “tough on crime” stance.  A Colorlines article quoted Molly Gill, a counsel for FAMM, as saying, “it’s not a bad thing to engage with people from a wide variety of places. That’s what it’s going to take to get anything done and there are people in Congress who know that.”

Such broad alliances are yet more evidence that the winds of change are blowing hard on the issue of mass incarceration. What is not so clear is exactly what direction they are blowing and just how strong the storm of change will ultimately be.  The Smart Sentencing Act is a good reflection of the complex dynamics at work.  According to the premier progressive think tank on these issues, the Sentencing Project, the Act’s main components are:

* Extending the 2010 Fair Sentencing Act — which reduced the crack-cocaine sentencing drug quantity ratio from 100:1 to 18:1 — retroactively to prisoners sentenced under the old law

* Reducing  the severity of mandatory minimum penalties for drug offenses

* Granting  judges discretion to avoid overly harsh sentences for lower-level drug offenders

On one level, the impact of this on the Federal prison system could be considerable.  The extension of the Fair Sentencing Act will mean that some 9,000 people still in Federal prisons because they were sentenced under the old 100:1 laws (one ounce of crack cocaine yielded the same sentence as 100 ounces of powder) will have a chance to win their release. Since the vast majority of those people are African American, this could be a critical step in reducing racial disparity.  While decreasing the mandatory minimums makes an important ideological statement (though scrapping them altogether would have been much more powerful), the outcomes are uncertain.  The Smart Sentencing Act cuts existing penalties by half.  This could greatly reduce the time given to those sentenced under Federal drug laws. However, in order to maximize impact, both judges and prosecutors need to embrace the spirit as well as the letter of the law.

While no formal opposition to the Act appears to have emerged from the ranks of judges, in a letter to Attorney General Eric Holder, the National Association of Assistant U.S. Attorneys issued a powerful rejection of any attempts to alter sentencing legislation: “We do not join with those who regard our federal system of justice as ‘broken’ or in need of major reconstruction,” the organization said. “Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving.” This raises the prospect of prosecutors simply increasing the use of the already common practice of “stacking” – adding on extra charges. Such an approach could be a back door method of bringing things back to the old mandatory minimums.  Moreover, while reducing the mandatory minimums would give courts the option to reduce the time given to people with drug convictions, many judges may opt for the legally allowable option of handing out a sentence above the mandatory minimum-in effect following the old standard.

Perhaps a more troubling aspect of the Smart Sentencing Act is the addition of new mandatory minimums for domestic violence and sex offenses.  This demonstrates that legislators are still sharpening the punitive tool of mandatory minimums not casting it aside. Julie Stewart , national President of FAMM expressed her concern on the new minimums calling them “ unjustified and opposed by the very victims they are supposed to protect.”

Apart from these concerns, three other points are critical to putting the Smart Sentencing Act into a broader context. First, the Act only applies to Federal cases. While with roughly 216,000 prisoners the Feds house exceeds the population in any state system, they still account for less than ten per cent of those incarcerated in the US.  Whatever changes Washington makes in the Federal sphere may set an example for the states, but they have no legal application.  In fact, in recent years several states have shrunk their prison systems and taken important steps toward decarceration while Federal prisons and prisoners continued to multiply.  Passage of laws legalizing marijuana in Washington and Colorado are perhaps the most prominent example where the states have moved much faster than the national government.

Second, the Federal system has a disproportionately large number of people with nonviolent offenses. About 40% of the Federal prisoners have drug convictions while 30% are locked up for immigration related charges.  These numbers are much different in most states, where people with offenses for crimes defined as violent make up a much larger percentage of the prison population.  To qualitatively reduce mass incarceration, politicians will have to be willing to reduce sentences for violent offenses and provide options for early release of people with violent crimes who have already been locked up for inordinately long periods of time.  This requires an admission that the system itself has been unduly harsh and racially skewed in all aspects, not simply in punishing those considered “less dangerous.” So far few political leaders have shown a willingness to preach leniency toward those convicted of crimes defined as violent.  Third, while incremental reduction of sentences is an important step- a move that would never have happened without the years of campaigning by grassroots organizations, prisoners and their families- a much broader reflection on the debacle of mass incarceration is ultimately necessary.  For example, the Justice Reinvestment Initiative (JRI), a government initiated program begun in 2002, framed their task  as reducing  the prison population in order to generate funds for restorative and community building processes targeted at areas which have been devastated by mass incarceration.  The JRI received $27 million from the Omnibus Spending Bill passed by Congress on January 16th – a huge increment in their budget. While this was a positive development, the trajectory of the JRI bears scrutiny.  In a 2013 report, a number of prominent prison justice advocates, including leaders from the Sentencing Project, Justice Strategies, and the ACLU, expressed concern that the JRI has gradually deviated from its mission and begun focusing on reducing “the rate of prison growth rather than reduce the number of prisoners.”  In the view of the report’s authors, this has meant excessive emphasis on building consensus among legislators rather than connecting to community-based advocates to help direct a process of reconstruction. According to the report, JRI’s new approach runs the risk of stabilizing the prison populations at approximately its present level rather than generating savings for community reinvestment by quantum decreases in the number of people behind bars.  The views of the report’s authors concur with a point repeatedly stressed by Michelle Alexander, author of the best-selling  book The New Jim Crow: that building of a broad social movement akin in scale to the civil rights forces of the 1960s is the only way to reverse mass incarceration.

As more and more politicians become aware of the expediency of distancing themselves from excessive prison spending, the terrain of legislative and policy change will grow ever more complex. The Smart Sentencing Act is early days. Big changes are definitely in order, but the question remains as to whether they will fundamentally re-shape criminal and racial justice or simply be a holding pattern for mass incarceration re-packaged under many different names.

James Kilgore is a researcher, writer and social justice activist in Champaign IL.   He writes frequently on criminal justice issues and has published three novels, all drafted during his six and a half years in prison.  He can be reached at waazn1@gmail.com