Sentences Full of Errors

Holder

Inmates going to a Sunday morning service at the Jester State Prison Farm, near Richmond, Tex. Credit Charles Ommanney/Contact Press Images

Washington — As a college student in Virginia, Corey Jacobs started selling drugs with the help of a group of friends to make some extra money. A Bronx native, Mr. Jacobs was no kingpin, and no aspect of their drug conspiracy involved violence. Now age 46, Mr. Jacobs has served 16 years of a sentence of life without parole in the federal system.

 No question, Corey Jacobs should have gone to prison for his felony. But does he deserve to die there?

His sentencing judge does not think so. Judge Henry Coke Morgan Jr. wrote in a letter supporting clemency for Mr. Jacobs that had the law not mandated a life sentence, he would not have imposed one for a first felony conviction.

Sadly, Mr. Jacobs is no anomaly. There are thousands like him serving sentences in our federal and state systems that are disproportionate to their crimes. The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable.

 Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows. Such pandering is a reminder of how we got here in the first place.

A few numbers help to illustrate the scale of the problem. From the late 1970s, America’s incarceration rate more than quadrupled, to over 700 per 100,000 people from about 130; compare that with Russia, for example, which imprisons about 450 people per 100,000. Between 1970 and 2005, America’s prison and jail population increased sevenfold, to approximately 2.2 million from about 300,000.

The United States has about 5 percent of the world’s population, yet about 22 percent of its known prisoner population. In 2010, it cost about $80 billion per year to house these people in our prisons and jails.

Some more numbers: Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses.

Individual responsibility must always be a primary consideration in deciding sentences, but we must also acknowledge that there is racial bias in the criminal justice system. The disparity in incarceration rates has bred distrust, alienating communities of color from those who serve valiantly in law enforcement.

The Justice Department has pioneered reform. Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism.

The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe.

But there’s a limit to what the Justice Department can accomplish on its own. Both the Senate and House are now considering comprehensive criminal justice reform bills that could limit the use of mandatory minimum sentences and give judges more power to not impose them. This would be a promising start, but reform must go much further.

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them.

Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs.

Federal drug courts provide proven alternatives to incarceration for men and women willing to do the hard work of recovery. We should increase investment in these programs, with a target of a court in every federal district within five years.

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies.

The recidivism rate remains too high. We must remember that at least 95 percent of prisoners in state jails will eventually be released. They should have more support for their return to society, and we can increase their chances of making a successful transition by offering them the tools they need.

Mere familiarity is not a good reason to prolong a policy that’s not working. There can be no compromise on public safety, but we need a new approach: About a third of the Justice Department’s budget now goes to the Bureau of Prisons — and in the absence of change, that proportion will grow. Reform would bring not only more fairness, but also fiscal benefits. Today, the rate and length of incarceration in this country is unprecedented and unsustainable. The success of the Smart on Crime initiative proves we can be safely bold about reform.

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population. For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation. An opportunity like this comes once in a generation. We must not miss it.

The over-reliance on mandatory minimum sentences must come to an end. Corey Jacobs — and others like him — have paid their debt to society.

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