On July 13, President Barack Obama granted commutations to 46 people, including 13 serving life sentences, in federal prisons for nonviolent drug offenses. More than 35,000 people, or 17 percent of the federal prison population, have applied for early release since his administration announced its Clemency Project for people in federal prisons for nonviolent drug offenses in 2014.
“We’re at a moment where some good people in both parties, Republicans and Democrats, and folks across the country, are coming together around ideas to make the system work smarter, make it work better,” the president said in a Facebook video posted July 13.
Less than three weeks earlier, on June 25, 2015, Representatives Jim Sensenbrenner (R-Wisconsin) and Bobby Scott (D-Virginia) introduced the Safe, Accountable, Fair, Effective (SAFE) Justice Act. The bill calls for allowing sentence reductions for federal drug war prisoners, a move which could potentially affect half of the current federal prison population.
The latest in bipartisan criminal legal reforms, the act has been championed by organizations from the NAACP and the American Civil Liberties Union to the Koch brothers, the Police Foundation and Right on Crime. But, notes Families Against Mandatory Minimums, which also supports the act, “The bill does not repeal any federal mandatory minimum sentences or reduce drug mandatory minimum sentences across the board, but instead limits the application of federal mandatory minimum drug sentences to the highest-level offenders, as Congress originally intended.”
Federal prisons are at 130 percent capacity with half their population incarcerated for drug offenses.
The act is a response to both the continued increase in federal incarceration and its accompanying price tag. Since 1980, the cost of the federal prison system rose 595 percent, from $970 million to more than $6.7 billion (and this includes adjustment for inflation). The act also calls for greater use of probation instead of imprisonment for low-level nonviolent drug offenses and encourages districts to start drug courts. The money saved would be invested in local policing efforts.
But will the SAFE Justice Act actually reduce the long arm of mass incarceration? Or will it simply shuffle money – and bodies – around? For those who have been fighting to decrease prison populations, whether through systemic reforms, decarceration or abolition, what does the new interest of conservatives such as Sensenbrenner, coalitions such as Right on Crime and billionaires like the Koch brothers mean? Is this the start of a death knell around mass incarceration?
Molly Gill is the government affairs counsel at Families Against Mandatory Minimums, an organization that challenges mandatory minimums and harsh sentencing laws. “This bill would have a pretty significant effect,” she told Truthout. Noting that federal prisons are at 130 percent capacity with half their population incarcerated for drug offenses, she points out that the act contains several provisions allowing people currently imprisoned for nonviolent drug offenses to petition for sentence reductions.
Under the act, mandatory minimums would still apply to people with certain drug offenses who are considered organizers, leaders, managers and supervisors of a criminal activity involving at least five people. Those who were not could petition the court for a sentence reduction. In addition, the SAFE Justice Act would allow the 2010 Fair Sentencing Act, which changed crack cocaine sentencing, to apply retroactively. The Fair Sentencing Act is currently not retroactive, leaving 7,000 people serving what Gill calls “outdated sentences.” Under the SAFE Justice Act, they too would be able to petition for a sentence reduction. Finally, those who had been sentenced to a mandatory life sentence for a third felony drug offense would have their sentence reduced to 35 years.
All of these provisions would also apply to people facing federal drug charges in the future as well. “This sentencing reform is the best I’ve seen,” Gill said.
Andrea James is the cofounder and director of Families for Justice as Healing, an organization that focuses on reducing mass incarceration, particularly of women caught in the war on drugs. James has also spent time in the federal prison system and has witnessed firsthand the devastating effects of incarceration on families and communities.
She notes that the bill has been touted as combining different methods into a single package to reduce the federal prison population significantly. “We already have a way that we could do that,” she told Truthout days after the bill’s announcement. “It’s called closing the federal prison camps.” She notes that criteria for federal prison camps are so strict that those who meet them could easily be released instead. “Let’s start right there, open the doors to those federal prison camps and send everybody home.”
“Under the current circumstances, most first-time offenders are not given the chance.”
Still, James hopes that the SAFE Justice Act will allow women, including those who have spent less than 10 years in prison and thus are excluded from Obama’s clemency process, to rejoin their families and communities sooner. “Sakora Varone is a perfect example,” she said. Varone’s legal nightmare began when her boyfriend, who sold drugs, was killed on their front stoop. The police arrived, searched their home, found her boyfriend’s drugs and arrested Varone. She was sentenced to 135 months in prison for conspiracy to possess and distribute crack cocaine. But, because she has not yet served 10 years in prison, she is ineligible for Obama’s Clemency Project. The SAFE Justice Act, James hopes, would enable people like Varone, whose son grew from a chubby-faced little boy to a young man who now towers over his mother, to return to their families earlier.
She also hopes that the act’s push for probation instead of prison for first-time offenses may prevent other lives from being destroyed by lengthy sentences. “There’s [currently] no way to give a woman a chance to not go to prison on these drug cases,” she said. “This bill speaks a little bit to that when it talks about creating probation opportunities.”
For Arlinda Johns, being sentenced to probation instead of a 12.5-year prison sentence for selling 9.7 grams of crack cocaine over a four-month period would have made a huge difference. Johns, who received a sentence reduction in 2007, spent eight years, seven months and 19 days in prison before being released on probation.
But probation can also be a pathway back to prison. In 2015, nearly four years after her release, Johns traveled to Chicago to check on her mother, who had suffered a stroke several months earlier. Although she had told her probation officer about her trip, she missed a court-ordered counseling appointment, triggering a home visit and inspection. The probation officer found a marijuana roach in the garage. Johns was charged with possession of a controlled substance and, despite having informed him, leaving the district without permission. In March 2015, Johns was sentenced to four months in prison. Those four months have had devastating consequences: Johns lost not only her job, but also her car and the house that she had recently purchased.
Despite her experience, Johns believes that probation is much more preferable than prison. “Under the current circumstances, most first-time offenders are not given the chance,” she wrote in an email from the federal prison in Greenville, Illinois, where she is serving her sentence. “They are convicted and sentenced to prisons without a chance to prove their behavior was aberrant.” She also notes that many of the women whom she has met would have changed their lives if sentenced to probation. “When given choices of children or prison, I believe most women would be deterred from continuing crime because of the fear of prison.” As the bill is currently written, probation officers would be able to respond to probation violations with a graduated system of sanctions, ranging from verbal warnings and increased reporting requirements to electronic monitoring and community service, rather than relying on imprisonment.
Expanding Compassionate Release
The SAFE Justice Act doesn’t simply affect those with nonviolent federal drug cases. It also expands the policy of compassionate release. Currently, explains Gill, a person in federal prison is unable to apply for compassionate release on his or her own. Instead, the Federal Bureau of Prisons director must request a sentence reduction based on “extraordinary and compelling circumstances.” The Office of the Inspector General found that, on average, only 24 people are released under compassionate release per year. “What frequently has happened is that people would die before they got an answer,” Gill said. If passed, the act would allow the person in prison to petition the courts themselves.
The act also clarifies the previously vague criteria of “extraordinary and compelling circumstances.” Under the act, a person can apply if he or she is age 60 or over or in declining health. A parent can also apply if their children’s caregiver is dying, incapacitated or somehow unable to continue caring for the children. In other words, explained James who has worked with many women who are aging and ill, “You don’t have to be near-dead to get the benefit from it.”
Shrinking the Federal Prison System and Increasing Local Law Enforcement
While James hopes that the act would enable Varone and others to return home earlier, she is wary of the bill’s provisions to redirect the money saved from the federal prison system into local policing efforts. “In our communities, we’ve already been policed. Too often, what this means is that police departments do sweeps and then they take whoever is left and provide some services to them. It doesn’t stop the targeting and labeling of particularly and predominantly young Black men and gang-involvement because it’s the police doing the programming,” she said. “That money doesn’t come into the grassroots organizations that those of us in the communities and on the ground are doing phenomenal work. We have to redirect money to rebuild our communities [instead].”
Gill, however, doesn’t see a problem with redirecting money from the federal prison budget into law enforcement. “We’ve cut law enforcement because we’re spending this money on people who don’t need to be in prison for five or 10 years. We’re really not any safer by doing this. We are not safer when we are locking up this many nonviolent drug offenders and not spending money on things that really do stop crime from happening, like having a police officer on the corner.”
“Putting more money into the people who put people in prison doesn’t seem like a good strategy.”
Joey Mogul is an attorney at the People’s Law Office in Chicago. She represents people who have suffered from police violence and other forms of torture. She was also instrumental in the 15-year fight for reparations for survivors of Chicago Police Department torture. From 1972 to 1991, under the command of Jon Burge, Chicago police systematically tortured more than 100 African Americans with beatings, electric shock, suffocation and other brutal techniques. “The City had, for years, covered up these abuses, using tax payer money to defend officers,” Mogul told Truthout. Although the City Council passed legislation providing $5.5 million in reparations to torture survivors in May 2015, this has not ended abuse. “We continue to receive allegations that people are physically abused [by police],” Mogul said. She also noted the recent ACLU report that showed that Chicago police stop and frisk young Black men at a disproportionate rate.
Andrea Ritchie is the senior policy counsel of Streetwise & Safe, a New York City organization working around the issues of policing and safety of LGBTQ youth of color. She also received a Soros Justice Fellowship to document ways in which discriminatory policing impacts women of color and promote strategies to address these realities. Having seen firsthand how policing impacts people of color, Ritchie agrees with James and Mogul. “Putting more money into the people who put people in prison doesn’t seem like a good strategy to decrease the number of people in prison,” she told Truthout. “The better strategy would be to put those resources towards addressing the needs of people who are currently being criminalized.” Those needs include full employment at a living wage, affordable housing and health care.
Ritchie also notes that community policing has not meant a decrease in arrests and incarceration. “Community policing is another way of talking about broken windows policing, which cycles people into the criminal legal system for minor offenses,” she noted. She points to the enforcement of anti-prostitution laws as one form of community policing. “Folks engaged in the sex trade because they’re trying to meet their needs and that’s one of the few options available to them,” she said. “Putting more money into community policing isn’t going to reduce the criminalization of that population. That’s going to make them more of a target of broken windows policing.”
“We need to have drastic changes,” Mogul said. “We need to stop looking at police, jails and prisons for safety.”
Bipartisan Reform: Genuine Effort or Trojan Horse?
The SAFE Justice Act has been championed not only by advocates and organizations that have long pushed for prison reform, but also by conservative think tank Right on Crime and the Koch brothers. Charles Koch, chairman and CEO of Koch Industries, has often been quoted as having become interested in criminal legal reform after a grand jury’s indictment of a Koch refinery for 97 felony violations of environmental law. The company fought the charges for six years, eventually settling for $10 million.
Bill co-sponsor Rep. Jim Sensenbrenner, whose district includes the predominantly white and affluent Washington and Waukesha counties, has a history of opposing criminal legal reform and advocating harsher penalties. In 2000, for example, he voted against funding for alternative sentencing instead of more prisons. In 2005, he introduced a bill that created new mandatory minimums for nonviolent drug offenses, including a five-year sentence for passing a joint to someone who has been in drug treatment and a 10-year sentence for the sale of any controlled substance to a person under 18 years old. The bill, which failed, also prohibited judges from departing below the sentencing guidelines in most cases.
“It’s not just prisons you shut down. It’s prisons you don’t have to build; it’s guards you don’t have to hire.”
Gill welcomes their participation. “Let’s not forget that liberals and conservatives built this problem together,” she told Truthout. “Everyone voted for these laws when they were created. All you have to do is watch some high-profile crime happen and watch everyone line up to vote for the next mandatory minimum. It’s a bipartisan problem that requires a bipartisan solution.” She welcomes the efforts of Right on Crime. “They’ve really been a joy to work with,” she said. “We need them to reach other conservatives and to get those conservatives and liberals to think outside the box on this issue and realize you don’t have to stick to those old, worn-out narratives, these old Willie Horton fears. You can start thinking about this differently.”
Others are more skeptical. “Beware the Trojan Horse. What comes with what looks like a shared agenda, if you’re not looking at the motivation, you’re going to end up with a very different outcome,” Ritchie reflected. “There are folks who are aggressively pursuing an agenda of getting rid of ‘Big Government’ and one of the largest areas of expenditures for government is the criminal legal system and systems of incarceration.”
Indeed, one of the stated goals of Right on Crime is “right-sizing government.” Citing the increase of people under criminal justice supervision, Right on Crime argues, “This represents a significant expansion of government power.” Reducing the number of people imprisoned for nonviolent crimes allows for “a legitimate, but more limited, role for government.”
That may be what’s driving their agenda, Ritchie points out, “but that doesn’t meant that they’re opposed to people being incarcerated or policed or criminalized. They just want it to happen in different ways.”
Will the SAFE Justice Act Begin Closing Prisons?
No one is quite sure what impact the SAFE Justice Act would have on those currently in prison. But Gill predicts that, eventually, the decrease in lengthy sentences would lead to prison closures. She also notes the savings from not building new prisons. “For example, when the Department of Justice did its own cost assessment of the Smarter Sentencing Act, they included the costs that they wouldn’t have to spend on new prisons and hiring new correctional officers,” she said. “The Congressional Budget Office came up with a $3 billion savings over 10 years. The Department of Justice went even further and went 20 years out came up with $24 billion in savings. It’s not just prisons you shut down. It’s prisons you don’t have to build; it’s guards you don’t have to hire.”
For James and Ritchie, commutations for several dozen and sentencing reform around nonviolent drug offenses are not enough. Both agree that, beyond the SAFE Justice Act, what’s needed is widespread systemic change in the criminalization of drug use and approaches to crimes of poverty. When Obama first announced his intention to commute the sentences of several dozen drug war prisoners, Ritchie applauded his efforts, but also noted that clemency for a small number of people is “a tiny drop of water in what needs to be a sea change in the way that we approach mass incarceration and the criminal legal system in the US.” While acknowledging that passing the bill could open the door for similar reforms on the federal level, James also asked, “Ultimately, are we really helping people work through their root causes?”