Pubdate: Mon, 27 Jul 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: John Pfaff
Note: The writer is a professor at Fordham Law School.

THE WRONG PATH TO PENAL REFORM

This month, President Obama commuted the long sentences of 46 federal 
prisoners convicted of drug crimes, and over the next fewdays he laid 
out his vision for criminal justice reform in speeches to the NAACP 
and at the El Reno Federal Correctional Institution in Oklahoma. 
Prison reformers hailed these events as important steps forward in 
the effort to rein in the sprawling U.S. prison system. I don't think 
they should be so happy. Obama's speeches, unfortunately, explicitly 
emphasized one of the most problematic myths standing in theway of 
true penal reform, and the commutations implicitly did the same. In 
all three instances, Obama suggested that we can scale back 
incarceration by focusing solely on nonviolent offenders.

Obama made this a key point in his NAACP speech: "But here's the 
thing: Over the last few decades, we've also locked up more and more 
nonviolent drug offenders than ever before, for longer than ever 
before. And that is the real reason our prison population is so high."

This claim, which is widely accepted by policymakers and the public, 
is simply wrong. It's true that nearly half of all federal inmates 
have been sentenced for drug offenses, but the federal system holds 
only about 14 percent of all inmates. In the state prisons, which 
hold the remaining 86 percent, over half of prisoners are serving 
time for violent crimes, and since 1990, 60 percent of the growth in 
state prison populations has come from locking up violent offenders. 
Less than a fifth of state prisoners - 17 percent- are serving time 
for nonviolent drug offenses.

And contrary to Obama's claim, drug inmates tend to serve relatively 
short sentences. It is the inmates who are convicted of violent 
crimes who serve the longer terms.

Now, to be clear, not all violent offenses are especially harmful. 
But a significant fraction of those in prison for violent crimes are 
there for serious violence: murder, aggravated assault, armed 
robbery. Moreover, many officially nonviolent inmates have histories 
of violence.

In other words, for all the talk about nonviolent offenders, a 
majority of our prisoners have been convicted of a violent act, and 
even more have some history of violence. And because no one thinks we 
should set every drug or other nonviolent offender free, at some 
point we are going to have to reduce the punishments that violent 
offenders face if we really want to cut our breathtaking prison 
population down to size.

But this idea is a political third rail, and no leading politician 
has been willing to risk touching it. Almost all the reform proposals 
we have seen focus exclusively on scaling back punishments for drug 
and other nonviolent crimes.

That's what made Obama's commutations and policy speeches so 
disappointing. Incarceration is driven by so many local factors that 
neither federal sentencing reform nor presidential commutations can 
have much of an impact. What the president may be able to do, 
however, is use his national pulpit to shape the debate. Obama missed 
a major opportunity to influence the current conversation on how to 
reduce incarceration.

Imagine if Obama had signaled the importance of thinking about how we 
punish violent offenders by commuting the sentence of someone 
convicted of a violent crime, rather than repeatedly stating that all 
46 inmates were nonviolent prisoners.

Imagine if he had used the occasions to explain to the nation why 
extremely long sentences, even for violent offenders, are generally 
counterproductive, by pointing out studies showing that such 
punishments do not really deter crime and that offenders pose less of 
a risk of recidivism as they enter their 30s and 40s.

Imagine if he had talked about how we could reduce our punishments 
for violent offenders without necessarily compromising public safety 
through improvements in policing or expanded access to drug treatment 
and mental health care.

But in Oklahoma, Obama declared he has no "tolerance" for violent 
criminals, who he said need to go to prison to keep our communities 
safe. That claim glosses over the important but difficult issues of 
exactly who counts as sufficiently dangerous to warrant incarceration 
and how long they should spend in prison.

I don't want to seem churlish. A prison system with fewer nonviolent 
drug offenders serving long sentences would be a good thing. And the 
president did touch on several important points, such as the need to 
reduce the use of solitary confinement and the importance of thinking 
about how to help prisoners reintegrate into society after their release.

But if Obama had seized the opportunity to drive home the point that, 
sooner or later, we are going to have to confront how we handle 
violent offenders and the risks they pose, his speeches could have 
launched a difficult but necessary policy debate.

Instead, he played it safe. Worse than that, really. By focusing his 
actions and words on nonviolent drug offenders, he only strengthened 
people's belief that we can reduce prison populations dramatically 
just by focusing on the "safe" cases. But we can't.
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MAP posted-by: Jay Bergstrom